:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.573 OF 1989 CRIMINAL APPEAL NO.573 OF 1989 CRIMINAL APPEAL NO.573 OF 1989 The State of Maharashtra, Appellant. Vs 1. Kedu Dubla Bhamre, 52 yrs, 2. Kadu Dodha Bhamre, 29 yrs, Both residents of Kersane, Tal.Satana, Dist: Nasik .. Respondents Mr D.S. Mhaispurkar, A.P.P. for the appellant-State. Mr Harshad Palwe, for the respondents. (Absent). CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & D.B.Bhosale, JJ. D.B.Bhosale, JJ. D.B.Bhosale, JJ. DATE : 15th June, 2005. DATE : 15th June, 2005. DATE : 15th June, 2005. JUDGMENT : (Per D.B.Bhosale, J.) JUDGMENT : (Per D.B.Bhosale, J.) JUDGMENT : (Per D.B.Bhosale, J.) 1. The appellant-State has filed this appeal against the Judgment and order dated 10.5.1989, rendered by the Additional Sessions Judge, Malegaon, District-Nashik in Sessions Trial No.16 of 1989, acquitting the respondents, hereinafter referred to by their first names, for the offence punishable under section 302 read with 34 of I.P.C on the allegations that in the intervening night between 25.11.1988 and 26.11.1988 they committed murder of Mahadu Dubla Bhamre by means of stick and axe. :2: :2: :2: 2. Briefly stated, the prosecution case is that the deceased - Mahadu, accused no.1-Kedu and the solitary eye-witness Kautik (P.W.4) are the real brothers who were having their lands adjacent to each other. Admittedly, they were residing separately. Deceased Mahadu had harvested minor crop, such as Math, Mung etc and had kept the same near Bajra shives in his field. Since Hirubai (PW 1), wife of the deceased, was apprehending damage to the harvested crop by cattle of the neighbouring land owners including accused no.1, she requested her husband to take round of their field. Further the case set up by the prosecution is that at 2 am on 26.11.1988 deceased - Mahadu had gone for round towards his field when cattle of the accused persons were found grazing the harvested crop and on that count there was a quarrel between the deceased and the accused in which accused no.1, who was armed with a stick and accused no.2 with an axe, assaulted the deceased. The said occurrence was witnessed by Kautik Bhamre (PW 4). He, at the relevant time, was returning from Parner along with his wife and two daughters in a bullock-cart. Kautik put Mahadu in his bullock-cart and initially brought him at the farmhouse of Vithal (PW 3) and after giving water :3: :3: :3: took him to his farmhouse. There he woke up his wife and other members of the family. Mahadu was found to have had sustained severe injuries and in that condition, according to the prosecution, he made oral dying declarations as to who assaulted him at 4 different occasions. Initially he disclosed that at the scene of offence, then at the farmhouse of Vithal, thereafter, in the cart, on way to his house and again at his farmhouse in the presence of several witnesses. At his farmhouse, after disclosing that the accused persons assaulted him and after taking sip of water and tea, he died. The incident was informed by Hiraman (PW 2) to the Police Patil - Bhausaheb More (PW 7), who made further arrangements of recording FIR, sending the dead body for post mortem, etc. The FIR was lodged by Hirubai (PW 1). In pursuance of the FIR lodged by Hirubai, Rajendra Bhamre (PW 14) investigating officer, set the investigation in motion. He arrested both the accused and conducted further investigation by drawing different panchnamas, recording statements of several witnesses, sending the incriminating articles to Chemical Analyst and on completion of the investigation, submitted the chargesheet. After the case was committed to the Sessions Court, the accused were tried and acquitted of the offence under :4: :4: :4: section 302 read with 34 of IPC. 3. The defence propounded by the accused persons was of total denial. The defence has seriously challenged the claim of Kautik that he had witnessed the alleged incident as also the claim of the prosecution that the deceased was in a fit state of health to make four oral dying declarations to different witnesses. By way of defence, the suggestion was also made to the witnesses that since there was an enmity between Kautik and accused no.1, taking advantage of the situation, Kautik falsely implicated the accused to grab their landed property. 4. We heard the learned APP at considerable length and with his assistance perused the entire evidence and the impugned judgment. Since none appeared for the accused, we did not have a benefit of an assistance from the accused side. The learned APP, at the outset, submitted that the judgment of the trial Court is perverse and not based on the evidence on record. The evidence of the eye-witness - Kautik (PW 4) and of Hirubai (PW 1), Hiraman (PW 2), Vithal (PW 3), Sarubai (PW 5), Rajabai (PW 8), to whom oral dying declarations were made, was sufficient enough to bring home guilt of the accused :5: :5: :5: persons. There was absolutely no reason for these witnesses to falsely implicate the accused persons. He further submitted that the learned trial Judge has wrongly disbelieved them and discarded their evidence and acquitted them though a conjoint reading of the depositions of these witnesses clearly points at the guilt of the accused persons. Even other material, such as recovery of clothes and weapons, report of the Chemical Analyst and post mortem sufficiently corroborate ocular version of Kautik and the depositions of other witnesses to whom the oral dying declaration was made. The evidence on record is sufficient to draw a conclusion only of guilt of the accused and no other inference was possible and, therefore, the impugned judgment is not only perverse but suffers from manifest illegalities committed while appreciating the evidence and recording the order of acquittal. 5. The law is well settled that while dealing with an appeal against an order of acquittal the approach of the appellate Court to the consideration of the evidence should be to find out as to whether the findings recorded by the trial Court are vitiated by some manifest illegality or the conclusion recorded by the trial Court is such which could not :6: :6: :6: have been possibly arrived at by the Court acting reasonably and judiciously. 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 plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the other view appears to it to be correct. In other words, the High Court is expected to interfere with the order of acquittal only when the appreciation of evidence by the trial Court is perverse or the conclusion drawn by it cannot be drawn on any view of the evidence, where the application of law is improperly done, where there is substantial omission to consider the evidence existing on record, the view taken by the trial Court is impermissible on the evidence on record and if the order of acquittal is allowed to stand it will result the miscarriage of justice. Keeping this well settled position of law in view, we scrutinised the entire evidence on record to satisfy our conscience whether there is miscarriage of justice if the order of acquittal is allowed to stand and whether after more than 15 years the impugned order deserves interference and its conversion into conviction of the accused. :7: :7: :7: 6. The prosecution case rests on the evidence of 14 witnesses, post mortem report, chemical analyser’s reports, panchnamas etc. In so far as 14 witnesses are concerned, they can be divided into three groups, namely, eye-witnesses; witnesses before whom the oral dying declaration was made by the deceased; and other witnesses, such as doctors, panchas, police patil and police personnels, who were examined to corroborate the depositions of the witnesses in first two categories. We would like to deal with the evidence of Kautik (PW 4), the solitary eye-witness and the evidence of Hirubai (PW 1), Hiraman (PW 2), Vithal (PW 3), Sarubai (PW 5) and Rajabai (PW 8), before whom the alleged oral dying declaration was made, together so as to find out whether their evidence inspires confidence and/or it was rightly discarded by the trial Court. Kautik (PW 4) claims that he witnessed the alleged occurrence. He has stated that at the relevant time he was returning from Parner and when he reached the farmhouse of Vithal (PW 3), Vithal told him that he heard hue and cry coming from the field of his brother Mahadu. Kautik, therefore, left the bullock-cart near the house of Vithal and rushed towards Mahadu’s farm. When he reached the scene of offence, he found Kedu :8: :8: :8: -accused no.1 was poking the stick in the chest of Mahadu and was saying "Pani Magto Bhadvya Kathi Pahili Ka" (asking for water have you seen the stick). Kadu - accused no.2 was also there armed with axe. Kautik, however, has not attributed any overt act to Kadu. On seeing Kautik the accused fled. Kautik went near Mahadu and made him to sit and asked him as to who beat him. When deceased Mahadu allegedly disclosed the names of Kedu and Kadu as the assailants. Since he was not able to walk, Kautik came back to the farm house of Vithal, left the female folk there and went with the bullockcart to the scene of offence. Vithal refused to accompany him on the pretext that his wife was alone in the house. Kautik brought Mahadu in the bullockcart when vithal offered him water. Kautik claims that at that time he again asked Mahadu as to who beat him when he disclosed the names of Kedu and Kadu as the assailants in the presence of his wife, two daughters and Vithal. Thereafter, they took Mahadu in his bullockcart to his house where he woke up the wife of Mahadu and other family members. Mahadu was removed from the bullockcart and was made to sleep in the house where he was given water and tea by his wife. There once again, the deceased made oral dying declaration on a query made by his wife as to who :9: :9: :9: beat him. This is what Kautik has stated in his examination-in-chief about the occurrence and the oral dying declarations made by Mahadu. When the second oral dying declaration was made, apart from Kautik, Vithal (PW 3), Sarubai (PW 5) and Rajabai (PW 8) were present. The third dying declaration was made on being asked by Rajabai, in the cart, on their way to the house of Mahadu and the fourth oral dying declaration was made in the presence of Hirubai (PW 1), Hiraman (PW 2), Kautik (PW 4), Sarubai (PW 5) and Rajabai (PW 8), the second category of the witnesses. 7. Before we deal with the oral dying declarations made at four different occasions, we would like to consider the evidence of Kautik who claims that he had seen the accused giving assault to Mahadu. Kautik, in his deposition, was very specific that when he reached the scene of offence he found that Kedu was poking stick in the chest of Mahadu and Kadu, who was armed with an axe, was also there. No overt act was attributed to Kadu. He has also stated that he identified Mahadu only when he made him to sit. From distance he did not identify Mahadu though he had identified accused persons. He has also specifically stated that when he made Mahadu to sit, he asked him that who beat him on which Mahadu :10: :10: :10: disclosed the names of both the accused. This version of Kautik creates doubt for more than one reason. Firstly, from distance why did he not identify Mahadu who was also his brother particularly when he claims that he identified the accused. If he had not identified Mahadu, why did he not shout and ask his brother Kedu, who was inflicting blows, that why they were doing so and that who was the person to whom they were assaulting. He did not do so. His reaction was not natural and normal. He further states that on seeing him, the accused fled and when he made the victim to sit, at that time he identified the victim as Mahadu. If what he says is correct then the question arises why did he ask Mahadu as to who beat him inasmuch as he claims that he had seen Kedu and Kadu beating him with stick and axe. Had he really seen the assault, his natural reaction would have been to ask Mahadu why he was being assaulted by their brother Kadu. Moreover, when Kautik came back to the farmhouse of Vithal, to take the bullockcart to bring Mahadu from the scene of offence, he did not disclose to Vithal and his family members that Kedu and Kadu were beating Mahadu. It is interesting to note that Sarubia (PW 5), wife of Kautik, has, however, stated in her examination-in-chief that when Kautik returned to take the bullockcart she enquired :11: :11: :11: with him and Kautik told her that Kadu and Kedu beat Mahadu. This is a clear improvement made by Sarubai to support Kautik’s claim that he witnessed the occurrence and since Kautik and Vithal had omitted to say so. This certainly creates doubt about veracity of his statement that he had actually seen the alleged occurrence. Apart from some material omissions brought on record and proved, what we found in the cross-examination was more material. In paragraph 2 of the cross-examination, Kautik has categorically stated that he did not identify Mahadu initially. Further, when Kautik was specifically questioned in the cross-examination that whether he asked Mahadu that since when he was lying there, Kautik simply said "that I did not ask Mahadu the time since when he was lying there. He also did not talk about the time since he was lying there". If Kautik had witnessed the occurrence, his reply to the aforesaid question would have been that there was no reason for him to question Mahadu that since when he was lying there since he had himself seen the attack on Mahadu by the accused persons. In the cross-examination he has improved his version saying that the accused fled when he lifted Mahadu. He also asked the accused persons why they beat him and that they should not beat him. It is clear from the :12: :12: :12: evidence of Kautik that his relations with his brother Kedu were not good. In view thereof, a specific case was put to him that he falsely implicated the accused to swallow the property by taking advantage of the situation. Of course, this suggestion was denied by the witness. Bhausaheb More (PW 7) - Police Patil also did not support the prosecution case that Kautik is the eye-witness. We would like to go to the medical evidence at later stage which further persuaded us to hold that Mahadu was not in a fit state of mind to make oral dying declarations and that Kautik was not an eye-witness to the alleged occurrence. 8. That takes us to consider the second dying declaration which was made by deceased Mahadu at the farmhouse of Vithal. P.W.4 - Kautik has testified that after Mahadu was given water he asked Mahadu as follows: "At that time I again asked him as to who beat him, when he told that Kadu and Keda beat him. He told that the accused were grazing their bullocks on his MATH crop, and as he tried to drive away his bullocks, the two beat him. My wife and daughters were there when this talk took place and no one else was there." However, Vithal (PW 3)in his deposition in respect of second oral dying declaration, has :13: :13: :13: stated as follows: "He (Kautik) brought Mahadu Duble in the cart. I saw him and gave him water. He was severely injured. I fed him two cups of water and then they left. He did not tell anything then. After giving water, I asked him as to what had happened. He told me that he was beaten by Kadu and Kedu." There is a clear discrepancy between the version of these two witnesses. Kautik states that he asked the deceased as to who beat him at the farmhouse of Vithal while Vithal says he asked Mahadu as to who beat him. Moreover, neither the prosecution nor Kautik in his deposition has explained as to why and what was the reason for Kautik to ask Mahadu that who beat him, if Kautik had seen the accused beating him. In so far as Sarubai (PW 5) is concerned, she has stated as follows: "On enquiry my husband told that Kadu and Keda beat Mahadu. Then he went with the bullockcart there. We did not go there. He returned with Mahadu Dubla in the cart. Mahadu asked for water. Vithal provided water. My husband fed water to Mahadu. Mahadu told that he was dealt by Kedu and Kadu by axe and stick. Then we took him home in the cart." Sarubai does not state as to who asked Mahadu about the assault given to him. In so far as Rajabai (PW 8) is concerned, she does not speak about the second dying declaration :14: :14: :14: allegedly made at the farmhouse of Vithal at all. She has simply stated that Kautik brought Mahadu in a bullockcart when Mahadu was asking for water and he was given water by Vithal and after giving water, they left for Mahadu’s house. A bare look at the testimonies of all these witnesses would show that they are not only inconsistent but every witness has attempted to improve his or her version to support the prosecution case. In the cross-examination of these witnesses, their version in the examination-in-chief has further shaken. Apart from the omissions and discrepancies in respect of the time gap between Kautik going to the scene of offence and coming back, every witness has given different version. Vithal states that Kautik went towards Mahadu’s field and immediately came back and when he came back he did not talk to Vithal at all. He only requested Vithal to accompany him to which he refused since his wife alone was at home. It is clear from the evidence of Kautik, Vithal, Sarubai and Rajabai that Kautik alone took the cart to bring Mahadu from the scene of offence. According to Vithal, he returned within 2-4 minutes. Except Kautik, nobody was in the bullockcart which further shows that Kautik himself must have lifted Mahadu and put him in the bullockcart. Looking to the multiple injuries :15: :15: :15: suffered by the deceased, the clothes of Kautik ought to have been smeared with blood extensively. However, no such evidence has come forward. In so far as Kautik himself is concerned, he does not state how long was the scene of offence from the house of Vithal and how much time was consumed for going upto the scene of offence and coming back to the farmhouse of Vithal. In the cross-examination, Kautik has admitted that he does not remember whether he narrated to the police that near the farmhouse of Vithal while they gave Mahadu water, he narrated the incident in the presence of all. In so far as Sarubai is concerned, she has gone a step further and in the examination-in-chief itself has stated that when they reached the farmhouse of Vithal, he told her husband Kautik that Kedu and Kadu were beating Mahadu which is not even the case of the prosecution nor did Kautik state in his evidence to that effect. Sarubai has made material improvements in her evidence which, in our opinion, has made her testimony doubtful. Moreover, in her statement recorded by the police under section 162 Cr.P.C she did not speak anything about the second dying declaration made at the house of Vithal. Rajabai also in her deposition does not speak anything about the second dying declaration. Rajabai in her :16: :16: :16: examination-in-chief does not support the version of Sarubai who has stated that Vithal told her husband that Kedu and Kadu were beating Mahadu. In so far as time factor is concerned, Rajabai states that Kautik returned from the scene of offence within 5-10 minutes. She has further stated in examination-in-chief that when Kautik returned, he told everyone at the farmhouse of Vithal that Kadu and Kedu were also there which has not been stated even by Kautik. However, she does not state that Kautik informed about the beating by Kedu and Kadu. In view of this, we are satisfied that the learned trial Judge has rightly discarded both the oral dying declarations allegedly made by Mahadu at the scene of offence and at the farmhouse of Vithal. From the evidence on record it cannot be said that the conclusion, in respect of first and second dying declarations made by Mahadu, arrived at by the trial Court could not have been drawn on any view of the evidence and/or the view taken was not plausible on the evidence on record. 9. This takes us to consider the third and fourth dying declarations. According to the prosecution, the third dying declaration was made by Mahadu in the bullockcart while he was being carried :17: :17: :17: from the farmhouse of Vithal to his house. Except Rajabai (PW 8), no other witness has stated about the third dying declaration. Kautik and Sarubai are silent about the third dying declaration, while Rajabai is silent about the second dying declaration. However, she has testified that on way to Mahadu’s house, in the cart, Kautik again asked Mahadu as to who beat him when he replied that Kedu and Kadu beat him. Kautik and Sarubai did not say so. We are at a loss to understand that if Kautik had seen the alleged incident, why he was asking Mahadu the same question again and again. There was no reason for him to ask Mahadu again and again that who beat him. Moreover, except Rajabai, no other witness speaks about third dying declaration. In view of the apparent discrepancies in the testimonies of Kautik, Sarubai and Rajabai, the testimony of Rajabai regarding third dying declaration does not inspire confidence. Furthermore, her testimony is full of omissions and contradictions. In the cross-examination she has stated that she had narrated to the police in her statement under section 162 of Cr P C that Mahadu was asking for water, however, she could not assign any reason as to why that part of the statement was not incorporated by the police. Further in the cross-examination, she :18: :18: :18: has stated that to reach from the spot of the incident and the farm of Vithal, it takes about 15-20 minutes. There are several other omissions, contradictions and discrepancies in the evidence of all the aforestated witnesses in so far as the first three oral dying declarations are concerned and, therefore, the learned Judge has rightly disbelieved all the witnesses in so far as the first three dying declarations are concerned. 10. That takes us to consider the last dying declaration which was made by Mahadu at his residence in the presence of Hirubai (PW 1), Hiraman (PW 2) and of course, Kautik , Sarubai and Rajabai. According to the prosecution, when Mahadu was brought to his house, Hirubai saw that the clothes of Mahadu were extensively stained with blood and he had injuries to the chest and left thigh. About fourth dying declaration she has stated as follows: "Mahadu was able to speak. He said he was