1 Appeal No.314.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.314 OF 1992 State of Maharashtra .. Appeal. Vs. 1.Parmindersingh Ratansingh Bhomara R/o. A/12, Room No.14 Malad, (W) Bombay – 64. .. 2.Ranjitsingh Harvillasingh Rana Room No.3, Manchu Bhai Road, Malad (E) Bombay. .. 3.Abdul Hussain Alam Rathod Room No.10, Daruwala Compound, Malad (W) Bombay-64 .. 4.Rajesh Ramniklal Gurashia Room No.6/7, S.V.Road Malad (W) Bombay-64 .. 5.Prakash Thakurbhai Patel Room No.6, Daruwala Compound S.V.Road, Bombay-64 .. 6.Farukh Hussein Narpali Room No.2, S.V.Road, Daruwala Compound, Malad (E) Bombay-64. .. Respondents. Mrs.V.R.Bhosale A.P.P. for the State. CORAM : D.B.BHOSALE & RAJESH.G.KETKAR, JJ. DATED : 16TH SEPTEMBER, 2010. ORAL JUDGMENT (Per D.B.BHOSALE, J.) This appeal is directed against the judgment and order dated 4.2.1992 rendered by the Additional Sessions Judge, Greater Bombay S 2 Appeal No.314.92 in Sessions Case No.101 of 1991, acquitting all the seven accused who were charged and tried for the offence punishable under sections 144, 148, 302 read with section 149, 302 and 34 of the Indian Penal Code. They were also charged and tried for the offence punishable under section 37 read with 135 of the Bombay Police Act. 2. The prosecution case, as culled out from the evidence of the complainant Smt.Manjulaben Chhotalal Modi (P.W.1) in brief is that on 6.10.1990 at about 8.30 pm while she was in her house one Thakurbhai Rajput informed that her son Dinesh had been assaulted and was lying unconscious near the well. She immediately rushed to the scene of offence and found that her son was lying with his face towards the ground. She turned him around and asked him as to who assaulted him and he disclosed names of the first four accused i.e. Parmindar – accused no.1, Ranjitsingh – accused no.2, Abdul – accused no.3 and Prakash – accused no.4 as the persons assaulted him with deadly weapons. When she enquired with her son about the incident, she claims, that Madan – P.W.3 alongwith Avinash Kiritbhai, Bharatbhai, and Thakursingh were also present and they also heard the names of assailants. Then she took her son – Dinesh to the hospital of one Dr.Suchak. Dr.Suchak asked her to take him to Bhagwati hopital since it was a police case. The complainant, therefore, took her son to the Bhagwati hospital at Borivali where the doctor on examination declared Dinesh dead. The police officer also 3 Appeal No.314.92 went to the hospital at about 10 pm and recorded a statement of the complainant at the hospital. On the basis thereof, the offence came to be registered and investigation was set in motion and after completing the same a charge-sheet was submitted by the police. 3. The defence propounded by the accused in the course of trial was of total denial. The prosecution in order to bring home the guilt of accused examined ten witnesses. Out of this P.W.1 – Manjulaben, the mother of deceased - Dinesh and Madan - P.W.3 were examined to prove the oral dying declaration allegedly made by deceased – Dinesh. The prosecution has also placed reliance upon the evidence of other witnesses and more particularly the evidence of Dr.Vasant Vanmore - P.W.9 in support of their case. We have heard learned counsel for the parties and with their assistance gone through the entire evidence on record so also the impugned judgment to find out whether the conclusions drawn by the trial Court are perverse and whether the order of acquittal suffers from manifest illegality. 4. From the evidence of P.W.1 it appears that the deceased was Joint Secretary of Bhadran Nagar Social Welfare Society. She knew accused no.1 – Parminder Singh, accused no.2 – Ranjit and accused no.3 – Abdul. She claims that she knew other accused but she did not remember their names till the incident of murder occurred. She has stated that accused used to collect hafta in the locality and on that 4 Appeal No.314.92 count her son Dinesh and accused were on enemical terms. They had a meeting to resolve their disputes in which it is alleged that accused nos.1 to 3 demanded Rs.1,00,000/- from members of the society and, therefore, her son had lodged a complaint against the alleged demand of monies made by the accused. Insofar as actual incident is concerned, it appears that when she was at house at 8.30 pm one Thakurbai had informed that her son was lying “unconscious” near the well. The prosecution has not examined Thakurbai. However, from the admission given by this witness in her examination-in-chief it is clear that her son was lying “unconscious” and that he had been assaulted. When she rushed to the scene of offence his face was towards the ground. That further supports the information received by her that Dinesh was lying in unconscious condition. Then she claims that when she asked her son who assaulted him, initially he disclosed the names of accused nos.1, 2 and 3 as assailants. Then, she then says that he also told her the name of accused no.4 – Prakash, but further added that she did not recollect it properly. Many persons, according to this witness, had gathered at the scene of offence including Madan – P.W.3. She has specifically stated that when she asked her son about the names of the assailants and when he uttered the names, Madan – P.W.3 and some other persons were also present and they heard the names. In view thereof we perused the complaint alongwith a form which had been filled in by the police. The form and the complaint are exhibits 28-A and 28-B. Column 4 of 5 Appeal No.314.92 the form speaks about names and addresses of the accused, if any. Against this column, the police mentioned the names of first three accused and one unknown person. We, therefore, perused the statement of P.W.1 (FIR). In the statement she has stated that Thakurbai informed her about the incident at 8.30 pm and then she rushed to the scene of offence and there she asked her son as to who assaulted him and her son told her that accused nos.1 to 3 assaulted him. She has not made any reference to either fourth unknown person or any other accused. She has also stated that when the names of first three accused were uttered by her son Thakurbai Rajput, Avinash, Bharatbhai Patel, Kiritbhai and P.W.3 – Madan were also present and they also heard the same. Then she has stated that she took her son to the hospital. Thus, from bare perusal of the form Exhibit-28-A and the statement Exhibit-28-B it is clear that in the examination-in-chief she named first four accused, namely, Parminder – accused no.1, Ranjit – accused no.2, Abdul – accused no.3 and Prakash – accused no.4 as the assailants, whereas in the FIR Exhibit.28-B she named only three accused and did not make any reference whatsoever either to accused no.4 or any other accused in the case. Then in the cross examination she claims that P.W.3 - Madan also asked her son similar questions and her son told him also the names of the accused. This, however, she did not state either in her examination-in-chief or in the FIR. Then, in the cross examination, she has gone a step further and said that her son also 6 Appeal No.314.92 told Madan – P.W.3 that there were some other accused also but he would disclose their names afterwards and after saying so he became unconscious. The material omissions/contradictions in her evidence were specifically put to her and they are brought on record by the defence. 5. We have perused the evidence of P.W.3 - Madan. He has stated that he knew all the accused. He has also stated that the accused used to collect hafta and their association used to oppose their activities and they were on enemical terms. Insofar as the actual incident is concerned, he has stated that he was at his house at 8.15 pm when he heard commotion. He immediately came out of his house and saw P.W.1 was sitting with the head of Dinesh in her lap. Dinesh was lying with several injuries on all parts of his body. He has further stated that when he went near, he saw and heard P.W.1, asking Dinesh as to who assaulted him and Dinesh told her that accused no.1 – Parminder, accused no.2 – Ranjit, accused no.3 – Abdul, accused no.4 – Rajesh, accused no.6 – Prakash and accused no.7 – Farukh assaulted him. From bare perusal of the examination- in-chief it is clear that this witness has made material improvements, which it is apparent, are inconsistent with the testimony of P.W.1. Then he has stated that he also asked Dinesh as to who assaulted him, to which Dinesh did not reply but he requested to take him to hospital and that he would tell the names afterwards. Thus, it is clear 7 Appeal No.314.92 that these two witnesses are not only inconsistent but their testimonies do not inspire confidence insofar as oral dying declaration is concerned. 6. We have perused the impugned judgment very carefully and we find that the trial Court has considered all these aspects in proper perspective. It would be relevant to reproduce the relevant observations in paragraph 19 of the judgment: “.... .... .... If Thakurbai went from the place where the injured had collapsed after seeing him collapse, he would have required atleast 3-4 minutes to reach his mother and mother would have reached the place 8-9 minutes after the injured had collapsed. The other indication about the capacity of the injured is provided by the further version of the mother that the injured was lying with his face groundward. It is difficult to accept that a conscious person would lie like that. If a person collapses on his chest, as it would be essential for him to breathe, he would atleast change the side of his face by resting his head on the cheek to be able to breathe. A person lying on the ground with face downwards, would have his nose compressed and if conscious, is not likely to remain in that condition. Thus, if injured remained in that condition for a period of 9 minutes, the possibility of his being conscious would be very remote. The injuries were inflicted from the front side and due to his lying on the chest, by force of gravity, whatever blood which could flow within the body after the 8 Appeal No.314.92 injuries, would drain out by gravity, particularly when the heart had stopped to beat and that would explain a large pool of blood where the injured was first seen lying by him. The possibility of person who has lost such a huge quantity of blood for the period of 8-9 minutes after a major blood vessel was cut, is very remote for retaining his consciousness. Thus, the version of the mother itself in the light of nature of injuries, goes to show that it was highly improbable that the injured continued to be in a condition to make a statement after his mother had reached there. The presence of the mother at the place where he was lying was also challenged by the accused. For that purpose, the Sp. Public Prosecutor points out that though P.W.2 Bharat Patel was hostile, he has admitted that mother of injured was by his side. P.W.3 Madan Pednekar has specifically deposed about having seen the mother holding the head of the injured in her lap. The mother herself has deposed so before the court, but the evidence of the mother and P.W.3 Madan, suffers from doubt due to the version of mother holding the head of the injured in her lap having been added in the deposition, though it was omitted when their statements were recorded immediately after the incident. The contention of the Sp.Public Prosecutor that the mother might have overlooked her natural gesture of level while making the statement, does not carry much weight as if it was so, as admitted by the mother, her sari would have been soaked with blood and the I.O. who recorded her statement to incorporate the dying declaration, would not have overlooked to take charge of her sari as a material 9 Appeal No.314.92 piece of evidence. The failure of the investigating officer to take charge of the sari or to explain why sari of P.W.1 Manjulaben was not taken charge of, casts the version of the mother, that she had taken the head of her injured son into her lap, in serious doubt. The addition of that version further indicates implied realisation that the person in condition in which the injured was found by the mother by himself, could not have been in a condition to make a statement and consequently, necessity was felt to add something to explain why and how he regained the capacity to make a statement.” 7. 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 doubt regarding his guilt and when the trial Court acquit him, he retains the benefit in the appellate Court also. 8. It is in this backdrop the trial Court has considered the evidence of attachment of clothes of the accused and recovery of weapons and has discarded that evidence, on the ground that the articles were not kept in sealed cover and they were sent to the chemical analyser after one month. That apart, even the chemical analyser’s report also does not support the prosecution. The blood 10 Appeal No.314.92 group of the deceased, which was “B”, was not found on the clothes of accused. The report of the blood on the clothes of the accused was inconclusive. Moreover, the blood group of accused no.3 is also “B”. 9. There is yet another reason as to why evidence of P.W.1 is not worthy of credence. P.W.1 claims that when she reached the scene of offence she took her son in her lap. The investigating officer, however, has failed to attach her sari which would have proved her claim that her son was alive when she saw him first and that he made oral dying declaration. As a matter of fact from the evidence of Dr.Vasant Vanmore - P.W.9 it is clear that deceased – Dinesh must have died instantly and the doctor has so opined in his cross examination. Dinesh had sustained 24 injuries and almost all were incised on all vital parts of his body. The doctor has opined that cumulative effect of injury nos.1 to 6 would be necessarily fatal. In this view of the matter we do not find any reason to interfere with the order of acquittal passed by the trial Court. It is now well settled that unless there is absolute assurance of guilt, the appellate court is not expected to interfere with the order of acquittal. In the present case it cannot be stated so. 10. We have 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. 11 Appeal No.314.92 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 Court, in view thereof we confirm the order of acquittal. The appeal is, accordingly, dismissed. The bail bonds, if any, stand cancelled. (RAJESH.G.KETKAR,J.) (D.B.BHOSALE,J.)