Case: Suresh Sitaram Surve Vs. State of Maharashtra

2. The incident had taken place on the night of 12th February, 1981 outside and within the house of the deceased and the prosecution witnesses. Thewas also resident of the same locality. According to the prosecution there was enmity between the deceased and the family of the appellant which is borne out by certain events that occurred in October, 1978. On 11th February, 1981 i.e, the day previous to the date of offence the accused 1 to 6 (appellant being 5th accused) hurled abuses at the deceased and his family members in front of his house. On the date of incident at about 8.30 P.M., as the deceased was entering thereaching to his chawl, the accused persons were pelting stones on the chawl and also hitting the windows with sticks. They were armed with different weapons like Farshi, Gupti, Iron Bars and sticks. Soon thereafter, they surrounded the deceased Prakash Khatkar and began to assault him. He was initially assaulted with Farshi by the first accused (brother of the appellant). When he fell at the steps leading to the chawl, the appellant pierced Gupti into the stomach of deceased. He was also assaulted by other accused with the weapons in their hands. When the family members of the deceased intervened, they were not spared. The accused assaulted the brother of the deceased (PW6), his mother (PW3), his sister (PW4) and his brothers wife (PW5), inside the house. PW7 who was the neighbour was the last person to be attacked by the appellant. Injuries were inflicted on PWs, 3, 4, 6 and 7 by the accused party. PW2 the brother of the deceased took the deceased and other injured to the hospital along with a constable (PW9) and he lodged FIR on the same night. PW11 held theexamination of the dead body of Prakash Katkar. PW18, the R.M.O. of the hospital apart from noting the injuries on the deceased, examined the other injured and issued wound certificates.3. On reappreciation of the evidence, the High Court found that the acquittal of all the accused was unjustified. In short, the High Court recorded its views asour view, the learned judge has wrongly discarded the evidence of all the eye witnesses on the ground that they are members of one family and have tried to give the minute details of the incident, though it is observed by him that being the relations of the deceased by itself would not be the ground to discard the evidence of eye witnesses. Although there was sufficient light according to the learned judge at the place of incident and undisputedly the place of incident was in and near the house of the witnesses at night time when all the witnesses were supposed to be in their house, their evidence has not been believed. The FIR was lodged immediately after the incident by the brother of the deceased. After going through the evidence of the eye witnesses and other witnesses we are of the view that some of the accused are liable to be convicted.The High Court relied on the evidence of PWs 2 to 6 notwithstanding certain improvements here and there. However, the High Court was not inclined to attach weight to the evidence of PW7 as her testimony was found to be doubtful, though not false.

Reasoning:
6. As rightly observed by the High Court, the trial court was not justified in discarding the evidence of injured eye witnesses (excepting PW7) in toto on the ground of inimical disposition towards the accused or the improbability of narrating the details of actual attack. True, their evidence has to be scrutinized with caution taking into account the factum of previous enmity and the tendency to exaggerate and to implicate as many as possible. But on a perusal of the evidence tested in the light of the broad probabilities, the High Court was justified in reaching the conclusion that the prosecution witnesses are natural witnesses and they could not have concocted the case against the accused without anycertain doubts are sought to be created as to the genesis of the incident and the manner of attack by taking us through the topography of the scene of offence, we are not at all convinced that the prosecution case is belied on account of such factors. The argument that the injuries on the appellant were not explained by the prosecution and therefore the prosecution case of the appellant being an aggressor in open to doubt has no substance at all. In the course of examination of PW5 under Section 313 Cr.P.C., the appellant while denying his presence in the course of the incident had stated that while returning home from his vegetable shop, he was assaulted by a crowd in a passage but he could not recognize them on account of darkness. Thus, he does not attribute the injury to the deceased or the prosecution party nor does he suggest that he acted inWhile on this aspect, the High Court also observed that the possibility of the accused being injured when the deceased or the prosecution witnesses tried to resist the attack cannot be ruled out. Considering the facts and evidence on record, we affirm the finding of the High Court that the appellant in the company of others did attack the deceased with a dangerous weapon, namely, Gupti and the prosecution case in this regard cannot be thrown out on the tenuous grounds made out by the trialall the witnesses say consistently that the appellant pierce the weapon (Gupti) into the stomach/abdomen of the deceased. The evidence scrutinized carefully reveals that the appellant pierced the weapon one and at one spot only.The High Court commented that the eye witnesses merely stated that the appellant pierced Gupti into the abdomen of Prakash without stating how many times. On that premise, the High Court held that the appellant inflicted all the injuries on the abdomen and chest with Gupti.15. We do not think that his approach of the High Courtthe overt acts attributable to the appellant5th accused is tanable. The High Court failed to consider certain crucial aspects in this regard. Every witness in precise terms speaks to the infliction of injury on the stomach/abdomen. In fact, they proceed to give a graphic description of the stabbing by demonstrating the same in the court. It is no a case where the witnesses said in general terms that the appellant stabbed the deceased. On a plain reading of the relevant portions of the depositions extracted above, it appears that they witnessed only one injury being inflicted by the appellant with Gupti. At any rate, there is scope for doubt or ambiguity; if so, the prosecution should have specifically elicited from the eye witnesses that the appellant resorted to stabbing more than once. Moreover, the evidence of some of the witnesses reveal that the accused surrounded the deceased and more than one person was armed with Gupti. It transpires from the evidence of PW 17 the I.O., that two Guptis were recovered in thenear the scene of offence. It is therefore, quite probable that one or two companions of the accused could have caused the injuries found around the chest and abdomen with Gupti or a sharp weapon. It is also worthy of note that accusedbrother of the appellant, allegedly inflicted an injury on the thigh of the deceased with a Farshi. No injury was, however, found on the thigh of the deceased. It is quite likely that the injury attributed to A 1 could have landed at one of the vital spots. This possibility also cannot be ruled out. Under these circumstances, a reasonable doubt arises whether the injuries 1 to 4 were all caused by thealone who was armed with a Gupti. It is, therefore, not possible to connect all the severe injuries on the abdomen, infroaxillary, and epigastric regions to the appellant. Nor it is possible to hold beyond doubt that the fatal injury No.3 on the epigastric region or for that matter even injury No.2 on the infroaxillary area which according to PW 11 was capable of causing death if it was not attended to immediately, were inflicted by none other than the appellant. It was only PW 5, brothers wife of the deceased, who put up an improved version stating "I now say that it was in the center i.e. between chest and stomach", so as to connect the appellant with the most serious injury on the epigastric region. It is highly doubtful whether she could have noticed in that melee the exact spot of the attack. In fact, it has come out in crossexamination that in the statement recorded by the police she did not specify the spot which she had mentioned in the course of examination in Court.16. Despite the above loophole in the prosecution case, the appellant who undoubtedly participated in the attack cannot be absolved of the guilt. We may recall that all the witnesses unequivocally spoke to the fact that the appellant did inflict an injury by piercing Gupti into the stomach or abdomen of the deceased. Thus, going by the evidence on record, it can be safely concluded that the appellant did inflict one of the four injuries noted (1 to 4) in the post mortem report. Though it is not possible to say with reasonable certainty that he is the person who caused the injuries 3 and 2 which are the most severe injuries, even then the other two injuries i.e. stab wound on the front of the abdomen 2" x 1", deep upto the abdominal cavity and stab wound on left side of infroaxillary area 1" x 1/2 " x3" are, by any objective standards, sufficiently serious injuries, whether or not they are injuries sufficient in the ordinary course of nature to cause death. Any one of them is severe enough to infer that it was likely to cause death. The appellantaccused undoubtedly intended to cause such bodily injury, though we are not in a position to say positively on an overall view of the case, that the appellant himself intended to cause death.