1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.378 OF 1999 Date of decision:24/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? /No 3. Whether Their Lordships wish to see /No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? /No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the /No. Civil Judges ? 6. Whether the case involves an important /No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/378-99crra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.378 of 1999 Ujjanbai Premsing Patil, Age: 36 yrs, Occu: Household, r/o Virwade, Tq. Chopda, Dist. Jalgaon. ...APPLICANT VERSUS 1. State of Maharashtra Through G.P., H.C., Aurangabad. 2. Kashinath Ishwar Bhil, Age 31 yrs, occu: labour, r/o. Virwade; tq. Chopda, Dist. Jalgaon. ...RESPONDENTS ... Mr.C.P.Patil, Adv., h/f Mr. P.B.Patil, Adv., for applicant. Mr. K.M.Suryawanshi, APP for respondent State. Mr. U.S.Malte, Adv., for respondent no.2. ... CORAM : K.U.CHANDIWAL, J. DATE : 24/9/2009 *** ORAL JUDGMENT: 1. Heard learned Counsel extensively. 2. Acquittal for an offense under Section 302 of IPC in Sessions Case No.18/1995, dt.22nd 3 July, 1999, by the learned Additional Sessions Judge, Amalner, dist. Jalgaon, is subject of criticism by original complainant Ujjanbai, widow of deceased Premsing Patil. 3. On 14.2.2001, Rule was issued. The matter was expedited, R & P was called. 4. Agricultural field belonging to deceased Premsing was given on Batai basis to brother-in- law and relations of accused Kashinath and they were cultivating the same. On the fateful day, on 25th Jan.,1995, it is alleged that accused Kashinath went to the house of Premsing @ Sudam and asked him to accompany to his house for settling the accounts in respect of seeds of groundnuts. Since Ujjanbai was working in the house and Premsing, the deceased, was taking bath, he asked accused Kashinath to go ahead and he would follow him. However, without wasting time, he joined Kashinath hurriedly. At that time adjoining lady Bhimkorbai was cleaning platform at her house and she saw accused Kashinath and deceased Premsing @ Sudam following each other. 5. In a brawl, there were stab injuries inflicted by a sharp deadly weapon referred specifically as a sword taking toll of precious life of Premsing @ Sudam. Prosecution examined 4 PW 5 Rajendra and PW 6 Santosh as the witnesses to the incident. Learned Sessions Judge did not believe the evidence. He has apparently given un-required weightage for reaching to the contradictions and omissions in the two narrations. He was rather swayed with the status of PW no.5 to be residing opposite house of deceased. The learned Judge should have independently assessed quality of evidence of PW No.5 and 6 instead of castigating them in the manner he has done. 6. While dealing with the evidence of discovery referred by PW No.9 Pandurang, the learned Judge has again bungled, committed serious lapses in appreciation of evidence. The panchnama was not properly taken into account. The height of the cattle-shed was unmistakably stated to be five feet. It was not attached to the house. The learned Judge disbelieved the recovery contemplating that it was belated. The learned Judge did not bother that the house or the cattle-shed were in exclusive possession, enjoyment of accused Kashinath and it was his domain that perpetuated, which will not allow anybody to have access to the said cattle-shed to know where the weapon of assault is concealed. It was specifically referred by PW 9 Pandurang that the weapon was lying on or removed from roof of the cattle-shed. Learned Judge has referred 5 the same as from over the cattle-shed, giving altogether a different colour and complexion to the situation when PW No.9 specifically denies the suggestion that the weapon was not visible even if one stands near the cattle-shed. The learned Judge disbelieved the same. 7. The learned Judge overlooked the suggestions given to PW No.5 and PW No.6 by and on behalf of the accused projecting a case of self defense. 8. The learned Judge unwantedly referred that Sakhubai, a lady from the village who allegedly saw the brawl, was not examined. Learned Judge committed grave error when he says that said Sakhubai has seen assault by accused Kashinath to deceased Sudam. The appreciation of evidence of PW No.5 on this count is a mere surmise and conjecture of the learned Judge as he was not required to be lackey for the accused but he should have appreciated the same in the legally coherent way to indicate as to what could be the fact situation. The normal principle is, every person reacts to a situation in his own manner and passion. One gets stunned, one gets dishevelled; one feels shock, one may feel that it is better to sneak away from the spot, to avoid aftermath of the events, one may skip the events to narrate in succession. It was in this 6 scenario the learned Judge should have appreciated the evidence of PW Nos. 5 and 6 and unfortunately there is complete mismatch to the evidence and rather the learned Judge was unduly inquisitive about conduct of witnesses. 9. The learned Judge raised suspicion to PW 5's evidence but, in fact, suspicion cannot take place of proof as the substantive evidence. He could have considered the evidence in unison with the statement under Section 161 of Cr.P.C. and, if indeed, there was deviation from such statement, to have properly dealt with it. 10. The learned Judge should not have flogged the dead horse when PW No.5 allegedly stated to Ujjanbai that there was fighting going on between deceased and the accused. The insistence that PW No.5 should have stated to Ujjanbai about assault by a sword, is unexpected; everybody will not depict the picture and events in mathematical manner, as is accepted. Whenever a statement of fact is made by the witness when it is not challenged in cross examination, it has to be concluded that the fact in question is not disputed. The facts as stated by PW No.5, coupled with PW No.6, indeed, are not controverted in the manner it was expected of. 7 11. Witness was suggested there were illicit relations of the deceased, without there being any iota of further narration, evidence as to who was the lady or who could be the probable assailant. The reliance to such bare suggestion, without any head and tail by the learned Judge has also its ramifications in the appreciation field, which indicates that the learned Judge was more swayed on trivial aspects than the crucial evidence. 12. Learned Judge though considered evidence of PW No.7, the Panch, concerning seizure of the apparels, however, was oblivious to read evidence of PW Nos.10 and 11 which has not been challenged concerning seizure of the apparels of the accused and deceased. Most startling part in the matter is paragraph no.32 of Judgment. Though the learned Judge was apprised of Chemical Analyzer's report (Exh.36) confirming the blood group of the victim was "A" and blood group of the accused was "O", however, the blood stains found on the apparels of the accused i.e. Article Nos. 4, 5 and 6 were of "A" group, the learned Judge did not consider the same and nor bothered to deal with. 13. The learned Judge dealt with the post mortem notes and particularly column no.17 thereof, however, it was obligatory on the part 8 of the learned Judge to have taken into consideration the cumulative effect of injuries sustained by the deceased. The observation that the assault to the deceased could be by more than one person is imaginary and contrary to the record. 14. Learned Counsel for the accused took recourse in the matter of Johar and others Vs. Mangal Prasad and another ( AIR 2008 SUPREME COURT 1165) wherein the Apex Court has indicated that scope in the revision is limited. In the said case, the order of the trial Court not found to be passed without considering relevant evidence and the revisional Court criticized the testimony of autopsy surgeon for deliberately suppressing injuries and directed the trial Court to initiate proceedings against such surgeon. No infirmity is surfaced in the present case. 15. In KALI RAM V. STATE OF HIMACHAL PRADESH (AIR 1973 SUPREME COURT 2773) the Apex Court observed that: " The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The court further observed: 9 " It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice.Such a risk can be minimised but not ruled out altogether.It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape 10 than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." 16. I am conscious, the scope in the revision is limited, however, the revisional jurisdiction can be exercised in the exceptional cases when there is glaring defect in the procedure or there is manifest error of law or miscarriage of justice. Here is a case where there is apparent miscarriage of justice and manifest error committed by the learned Sessions Judge. The view taken by learned Judge was not probable, there is deviation from evidence and it is criticized on wrong track. Consequently, the revision application is allowed, the order of acquittal dt.22.7.1999, recorded by the Additional Sessions Judge, Amalner, dist.Jalgaon, is quashed and and set aside. The matter is remitted back to the learned Sessions Judge, Amalner, to decide the same expeditiously, on its own merit, without being influenced by the observations made herein. The bail bonds of the accused to remain 11 the same. The accused to surrender before the learned Judge on 24th Nov.,2009. Rule made absolute accordingly. ( K.U.CHANDIWAL) JUDGE agp/378-99crra