1 Cri.Appeal No. 592/1990 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 592 OF 1990 The State of Maharashtra. ... Appellant. vs. 1. Keshav Zingu Patil, Age 72. 2. Jaising Keshav @ J.K. Patil, Age 32 years. Both residents of Kapari, Tal- Shirala, District - Sangli. ..... Respondents. (Orig. Accused) Mr. H.J. Dhedia, APP for the State (Appellant). Ms. Sharmila Kaushik with Mr. Ganesh Bhujbal and Mr. Pawan Mali i/by Prakash Naik for Respondents. CORAM : D.B. BHOSALE & RAJESH G. KETKAR, JJ. DATE : 23RD AUGUST, 2010. ORAL JUDGMENT (Per D.B. BHOSALE, J.) : This appeal by the State is against the judgment 2 Cri.Appeal No. 592/1990 and order dated 2.5.1990 rendered by Additional Sessions Judge, Sangli, in Sessions Case No. 23 of 1989. By this judgment, the respondents-accused, who were charged and tried for the offence punishable under Section 302 read with 34 IPC, have been acquitted. 2. The facts giving rise to this appeal stated briefly are that the complainant-Ashok Rangrao Patil, the deceased-Jaising and the accused are residents of village Mouje-Kapari and they belong to same clan. The complainant and the deceased are brothers. Accused No. 1-Keshav Patil, father of the deceased-Rangrao Dnyanu Patil, Rajaram Khanderao Patil, Tukaram Ganapati Patil and Mahadeo Patil, were the co-sharers of an agricultural land being survey no. 71 (new Gat No. 56). This land was known as 'Mala' and it was their ancestral property. It was divided into several pieces and each sharer was put in possession of his share in the land. There was a common well in Survey No. 71. Rangrao Patil had installed an electric motor on the well. He used to allow the co-sharers to use the electric motor to irrigate their fields on payment of nominal charges. The accused had refused to pay the charges and, therefore, Rangrao was not allowing them to use the electric motor. There is yet another common property of these persons. Two years prior to the incident, accused no. 1 had started digging 3 Cri.Appeal No. 592/1990 a pit in this property for installing gober gas plant. The complainant had obstructed him and on that count there was a fight between the two in which accused no. 1 had allegedly assaulted the complainant. The cross complaints were filed by both in respect of this incident. Thus, the accused and the complainant were on inimical terms. On 6.11.1988 when the complainant Ashok (PW-9), Mahadeo Shankar Patil and Akaram Dnyanu Patil (PW-10) were in the field they heard the cries of Jaising coming from the direction of the well and, therefore, they immediately rushed towards the well. They claim that they saw accused no. 1 dealing two blows, one on the shoulder and the other on the neck, to Jaising with an axe. Accused no. 2 also dealt one blow on the neck of Jaising. As a result thereof, Jaising fell down and then there was hue and cry. The accused, thereafter, fled towards the brook. On hearing the hue and cry, Maruti Yashwant Patil, Shankar Babaji Patil, Sanjay Akaram Patil, Yuvraj Patil, Police Patil of the village and some other persons also rushed to the field of the complainant. Thereafter Jaising was taken to Krishna Charitable Hospital, Karad, where he was declared dead. P.W. 9-Ashok lodged an F.I.R. (Exhibit-37) at Shirala Police Station. Ramchandra Patil, PSI (P.W. 13) carried out the 4 Cri.Appeal No. 592/1990 investigation and after completing the same submitted charge sheet against the respondents-accused in the Court of JMFC, Shirala. The case was then committed to the Court of Sessions vide order dated 6.2.1989. Before the Sessions Court the charge was framed and explained to the accused on 13.11.1989. The respondents-accused pleaded not guilty and claimed to be tried. Their defence was that of total denial. They also examined one Hindurao Patil as defence witness in support of their case that accused no. 2 was not present and he was on duty at the relevant time. In defence, they also made an attempt to bring on record that Akaram Patil and accused no. 2 were on inimical terms and hence they were falsely implicated in this case. 3. It is against this backdrop, the prosecution in order to bring home the guilt of the accused, examined 13 witnesses. Out of them PW-9 A.R. Patil and PW-10 Akaram Dnyanu Patil are eye witnesses. Besides this, PW-1-Babu Laxman Patil, PW-2Mansing Pandurang Jadhav, PW-3-Subhash Tukaram Patil, PW-4-Maruti Shiralkar, PW-5-Ananda Pandurang Sawant and PW-6-Gangaram Yashwant Patil are panch witnesses, whereas PW-7-Ramdas Devappa Mane is a doctor, who collected blood samples of the accused. PW-8-P. R. Sutar is Circle officer who prepared map of the scene of offence. PW-11-P.S. Pawar is a doctor who conducted post mortem. 5 Cri.Appeal No. 592/1990 PW-12-Jagganath Ramchandra Patil is owner of motor cycle which was used by the accused persons. The investigation was carried out by PW-13-Ramchandra Dinkar Patil, PSI. Out of these 13 witnesses, PW-3 Subhash Tukaram Patil and PW-12 Jagganath Ramchandra Patil did not support the prosecution at all and hence they were declared hostile. After appreciating the entire evidence placed on record by the prosecution, the trial Court acquitted both the accused by giving them a benefit of doubt after having noticed inconsistencies, discrepancies, improvements, contradictions and omissions in the evidence of eye witnesses. The trial Court held that the prosecution failed to prove beyond reasonable doubt that the accused in furtherance of their common intention, in the field known as 'Mala' situated at Kapari, committed murder of Jaising. 4. Before we proceed to appreciate the evidence and examine the impugned judgment, it would be advantageous to make reference to the well settled position of law, to be considered while dealing with criminal appeals against acquittal. The Apex Court in Tota Singh & Anr. v. State of Punjab, AIR 1987 SC 1083 in paragraph 6 has observed thus : "This Court has repeatedly pointed out that the mere fact that the appellate Court is inclined on a reappreciation of the evidence to 6 Cri.Appeal No. 592/1990 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 a plausible one, the appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous." 5. Similarly, the Apex Court in Dhanna and Ors. Vs. State of Madhya Pradesh, AIR 1996 SC 2478 in paragraph 11 made following observations:- "Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind: first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second, every accused is entitled to the benefit of reasonable doubt 7 Cri.Appeal No. 592/1990 regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus appellate Court in appeals against acquittals 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 is liable to be interfered with or disturbed." 6. The Apex Court has thus laid emphasis on the general principle of criminal jurisprudence that the presumption of innocence in favour of the accused further stands strengthened by the acquittal. It is further clear 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 a 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 any manifest illegality and that the conclusion arrived at could not have been possibly arrived by any Court acting reasonably and judiciously. 7. The prosecution case, in the present appeal, 8 Cri.Appeal No. 592/1990 rests mainly on the evidence of two eye witnesses, so also the evidence of PW-11 - Dr. P.S. Pawar. The complainant PW-9 and PW-10 Akaram claim that they witnessed the incident and they had actually seen the accused persons inflicting axe blows to the deceased. PW-9 is a brother of the deceased whereas PW-10 Akaram is his brother-in-law. It has come in their evidence that some other persons were also present when the alleged incident occurred namely, Mahadeo Patil and Bhimrao Gurav. These two persons were not related to the deceased and though they were available the prosecution chose not to examine them as witnesses in support of its case. Having regard to the relationship of PW-9 and PW-10 with the deceased, their evidence needs to be scanned with extra caution. Though the complainant-P.W.9 has denied his relationship with P.W. 10-Akaram, it stands proved on the basis of the evidence that the wife of Akaram and the wife of Mahadeo are real sisters and they are daughters of one Sugandhabai, the real sister of Rangarao i.e. the father of the deceased. 8. PW-9 Complainant, apart from stating about the relationship, the previous enmity and lot about the location has stated that on the day of incident, he along with his brother had gone to the field for irrigating the standing crop. At the relavant time, he along with Mahadeo and Akaram 9 Cri.Appeal No. 592/1990 were joining pipes. Bhimrao was preparing beds by the side of Band. The deceased Jaising who was also in the field took PVC pipes to put them near the water channel. After doing so when he started coming towards the place where the complainant and others were working, both the accused and the wife of accused no. 1, namely, Anubai were seen coming towards the field. He had seen them meeting Jaising. The complainant has further stated that accused no.1-Keshav asked Jaising about a fuse of the electric motor, when Jaising replied that he did not know about the fuse and his brother knew about it. This behaviour of Jaising, according to the complainant, annoyed both the accused who were armed with axe at the relevant time. He has further stated that the accused followed Jaising and they caught him near Ramfal tree. He saw accused no. 1 inflicting the first blow on the shoulder of Jaising, and when Jaising was about to fall he gave another blow on his neck. After Jaising fell down, accused no. 2 inflicted axe blow on the neck of the deceased Jaising. When Jaising started screaming, the complainant and all other persons who were present in the field rushed towards the scene of offence. Similar is the version of PW-10, however, it contains material contradictions, discrepancies and improvements. 9. The trial Court after considering the evidence of 10 Cri.Appeal No. 592/1990 these two witnesses, in paragraph 13 observed thus :- "Jaising, Bhimrao Gurav, Akaram Patil PW.11 and Mahadeo Shankar Patil were also with complainant when they went to Vasti at Tin-Kona. Complainant has deviated from this version during the cross- examination. In the cross-examination, complainant testified that he himself, his father and Jaising stayed at their Vasti in field Tin Kona on the earlier night. Mahadeo and Akaram had come to this Vasti in the morning and then all of them went to field Mala (para No. 10 and 11 of his deposition). Evidence of PW.10 Akaram in respect of this phase of episode is entirely different. According to Akaram, he was at the S.T. Stand which is by the side of his house. In the morning, his brother-in-law Mahadeo who owns strips from field Mala, approached him at about 7 to 7.30 A.M. With Mahadeo, he went to Tin-Kona. Bhimrao, Jaising, and Ashok were at the Vasti. All of them then went to field Mala taking PVC pipes with them. These two versions cannot be reconciled by any stretch of imagination. It is an admitted fact that complainant Ashok as well as P.W. 10 Akaram have made improvements in their testimony to show that Bhimrao Gurav was also with them at the time of occurrence. From the evidence of complainant and Akaram, it is clear that the evidence of witnesses regarding the presence of Bhimrao is doubtful. If in fact Ashok, Jaising and his father were at the Vasti and Akaram and Mahadeo went there afterwards, it is not clear when and how Bhimrao also came there. It is also not clear whether Bhimrao had gone to field Mala directly from the village. Testimony of complainant Ashok and P.W. 10 Akaram, therefore, shows that their version regarding presence of Bhimrao Gurav is doubtful. There are other contradictions between the evidence of these witnesses regarding the incident itself. Besides, they have made improvements in their testimonies. Complainant Ashok testifies that he saw accused and Anubai coming to the field by the road. Akaram has also testified to this effect. However, both these witnesses have made improvements to show that Anubai was also with the accused. Complainant Ashok has not mentioned in his FIR Exh.37 that Anubai was also with the accused. Be that, as it may; complainant Ashok claims that after coming to the field accused 11 Cri.Appeal No. 592/1990 had conversation with deceased Jaising and they were making inquiries about the fuse. Jaising gave reply in a rude manner stating that his brother has knowledge about the fuse and when he was repreminded, Jaising impudently claimed that he is behaving rudely. After that the accused brandished their weapons and Jaising started running away. Similar evidence is given by P.W. 10 Akaram. Both these witnesses claimed that while Jaising started running, he called them for help by saying, "Bhau, Dada, Anna come for me rescue. Jaising was running towards the well. After he negotiated some distance, he was caught by accused near Ramfal tree. and accused No. 1 opened assault by dealing axe blows on the shoulder of Jaising. This story about the conversation and subsequent conduct of deceased Iaising and accused is not mentioned by complainant in FIR Exh.37. During his cross-examination, Akaram has admitted that when the conversation took place, Jaising was clearing mud from the cement pipe, and the conversation took place near the cement pipe. This admission of Akaram shows that evidence regarding the meeting of Jaising and accused given by complainant and Akaram is contradictory. According to complainant, accused met deceased Jaising while he was coming towards the cement pipe. Akaram, however, claims that the conversation took place near the cement pipes when Jaising was clearing the mud." 10 In so far as the actual assault is concerned, the complainant claims that the accused no. 1 inflicted first blow on the left shoulder of Jaising and when he was about to fall, he inflicted the second blow and thereafter accused no. 2 inflicted axe blow on his neck. It has also come in the evidence that Bhimrao Gurav was also chased by accused persons but he managed to escape. The prosecution has not examined Bhimrao though he was available. Insofar as 12 Cri.Appeal No. 592/1990 PW-10 - Akaram is concerned, he has stated that the first blow was dealt by accused no. 1 Keshav on the left shoulder and then the second blow on the neck and as a result thereof Jaising fell down. Thereafter accused no.2 inflicted a blow on the neck of Jaising. Thus, the trial Court has rightly observed that there is no consistency in the ocular version of PW-9 and PW-10. In this backdrop, we examined the medical evidence to find out whether it supports ocular evidence. Evidence of Dr. Pandurang Pawar (PW-11) shows that the deceased sustained five injuries. Out of these injuries, three were incised whereas remaining two were contusions. The cause of death, as is seen from the post-mortem notes, is "due to shock due to haemorrhage due to injuries as mentioned in column no. 17". The doctor in his evidence has opined that injury no. 2 and 4 were sufficient in the ordinary course of nature to cause death. He has also stated that injury no. 2 and 4 collectively and individually were sufficient to cause death in the ordinary course of nature. In the cross- examination, he has mentioned that since there was a facture of cervical 5 and 6, it is likely that while withdrawing the weapon after inflicting the second injury, the third injury was caused. He, thus, has opined that injury no. 2 and 3 were caused by single blow. In view of the evidence of P.W. 11, the trial Court holds that the medical evidence is inconsistent with the ocular version. At this stage it would be relevant to 13 Cri.Appeal No. 592/1990 notice the observations made by the trial Court in respect of the sequence of events mentioned by the complainant and PW-10. The relevant observations read thus:- "If sequences are considered, it is clear that the evidence given by eye-witnesses complainant Ashok and PW-10 Akaram, is not logical. It is also pertinent to note that complainant testifies that the blow was dealt while Jaising was running away, from the back-side. However, this evidence is inconsistent with the medical evidence, because description of injury no. 4 shows that it extends upto arm pit and cannot be caused from the back- side, of the victim. To over-come this difficulty, P.W. 10 Akaram made improvement that on hearing noise made by complainant, himself and others, Jaising turned and then blow was dealt. Obviously no reliance can be placed on this testimony of Akaram, because improvement is made by way of an after-thought, merely to explain medical evidence on record. All these facts show that there are contradictions between the testimony of eye- witnesses. Not only that, both of them have made improvements. Their evidence is contradicted by medical evidence of Dr. Pawar." 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 14 Cri.Appeal No. 592/1990 to why we should not give the benefit of doubt to the respondents-accused, as is given by the trial Court. 11. Next, we would also like to examine the evidence of panch witnesses, who were examined to prove discovery of weapons and to show arrest of the accused with blood stained clothes, and the evidence of Investigating Officer - PW-13. The trial Court after considering the depositions of panch witnesses PW-3 and PW-5 has disbelieved the recovery panchanama so also the panchanama of attachment of motor cycle. Both these witnesses have stated that when they went to the Police Station the panchanama was already prepared and they signed it at the Police Station. In so far as accused no. 2 is concerned, he was arrested near S.T. Stand after two days of the incident. It is alleged that he was wearing the same blood stained clothes and that the clothes were attached on the road itself and then the accused was taken to the Police Station. Similarly, even the other accused was also arrested on the road and his clothes were attached and then he was taken to the Police Station. The panch witnesses have not supported the prosecution case in toto. Keeping that in view and having considered the discrepancies, contradictions and improvements in their evidence, the Court below has rightly discarded their evidence which was brought on record to connect the 15 Cri.Appeal No. 592/1990 accused with the alleged incident of murder. On appreciation of evidence, the trial Court did not find even the evidence adduced regarding safe custody of articles satisfactory. In our opinion, as has been observed by the trial Court, the prosecution has failed to establish complicity of the accused in commission of the crime and that they are entitled for benefit of doubt. 12. We have, thus, re-appreciated the entire evidence on record which, in our opinion, is definitely not sufficient to hold that the prosecution has proved beyond reasonable doubt the involvement of the accused. In any case, the findings recorded by the learned Judge cannot be termed as perverse. The jurisdiction of this court, as observed earlier, 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 Court. In view thereof, we affirm the order 16 Cri.Appeal No. 592/1990 of acquittal and dismiss the appeal. The bail bond, if any, stands cancelled. (D.B. BHOSALE,J.) (RAJESH G. KETKAR, J.)