The appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice: Bombay High Court

Ajay IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CIVIL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 428 OF 2001 The State of Maharashtra At the instance of Sr.P.I. of Dindoshi Police Station Vide C.R.No. 60 Versus 1. Omprakash @ Munna Aliyar Singh 2. Sanjay Gopal Pawar 3. Rakesh @ Babu Sakharam Tejam 4. Prakash Chhedilal Nagar All residing at Aliyarsingh Chawl Shivaji Nagar MaladMumbai 400 097 Orig. Accused Nos. 1 to 4  Mr. V.B. Kondedeshmukh APP for Appellant State  Mr. M.K. Kocharekar for Respondent Nos. 1 to 4. CORAM : S.S. SHINDE MILIND N. JADHAV JJ RESERVED ON : 20 DECEMBER 2021 PRONOUNCED ON : 10 FEBRUARY 2022 JUDGMENTThe learned Additional Sessions Judge Court of Sessions Greater Bombay by judgement and order dated 26.02.2001 28.02.2001 has acquitted Respondent Nos. 1 to 4of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code 1860in furtherance of their common intention at 6:00 PM on 27.11.1997 in front of a paan beedi shop of one Shri. Radheshyam Shivshankar Rai which is adjacent to the hardware shop of Maharashtra Trading Company situated at Adarsh Nagar Chowk Kurar Village MaladMumbai Before we advert to the submissions made by the respective advocates and to the reappraisal of evidence on record it will be apposite to refer to the relevant facts of the incident briefly Respondent No. 1 is the son of Shri. Aliyar Singh who is the owner of a chawl near the spot of the incident. Respondent No. 1 and his father have had a long standing dispute with the deceased and his brother Shri. Jitendra Ramchandra Singhin respect of a room housing a manufacturing unit. This dispute pertained to the transaction and valuation by which the manufacturing unit was purchased by the deceased and his brother from the father of Respondent No. 1 The deceased and his brother Shri. Jitendra Singhwas beside the deceased at the time The police constable on duty thereafter registered an entry in the Emergency Police Registerand informed the concerned police station by telephone. Shri. Trimbak Lal Patilthe Investigating Officer immediately visited Bhagwati Hospital. He was told that Shri. Jitendra Singhwas not in a position to make any statement. As a result he recorded the statement of the owner of the paan shop Shri. Radheshyam Rai and treated the same as the First Information Reportand sent for chemical analysis A chargesheet was filed before the Additional Chief Metropolitan Magistrate of the 24th Court Borivali. As the offence was exclusively triable by the Court of Sessions the learned Metropolitan Magistrate committed the case to the Court of Sessions Greater Bombay under the provisions of Section 209 of the Code of Criminal Procedure 1973and Shri. Sagar Gawadethe finding of the Trial Court that Shri Jitendra Singhwas not present at the time of the commission of the act is erroneous the testimony of Shri. Jitendra Singhand Shri. Sagar Gawadeis corroborated by the deposition of Shri. Dharmendra Singhwho had heard of the plan to assault the deceased the evidence of all the aforementioned three witnesses along with the recovery of the blood stained clothes and weapons recovered pursuant to the statement recorded by Respondent No. 3 and 4 themselves proves the case of the Prosecution beyond reasonable doubt. We shall now outline and then scrutinize the evidence given by each of the three witnesses based upon which Prosecution makes out its case against the Respondents Shri. Jitendra Singhbrother of the deceased has deposed as under i. He states that he opened the manufacturing unit at 9:00 AM on 27.11.1997 as usual. At around 6:00 PM the deceased left the manufacturing unit and went to the paan shop of Shri. Radheshyam Rai which is in the vicinity of the manufacturing unit In Paragraph 5 of his examination in chief he has deposed as under “5….then my brother Virendra left our factory at about 6:00 PM on that day Then he went to paan shop to take paan as usual the said paan shop was in front of our factory. That time I had remained in our factory as a phone call was received from the customer. The said phone call was for the purpose of supplying of goods from our factory. So I went out of the factory to call out my brother. Then that time I saw persons on the street were running away. The people were helter and skelter on the road. Then I came little ahead from my factory and I saw that my brother was being assaulted by all the four accused now before the court.” as well as further aspects to the case that arise from his evidence are as follows From the evidence given by P.W. 1 it is clear that the incident took place in the presence of Shri. Radheshyam Rai the owner of the paan shop adjacent to the factory His clothes are also said to have been stained with the blood of the deceased. It is also stated that he accompanied P.W. 1 to the various hospitals. Thus Shri Radheshyam Rai becomes an important witness to the incident. However surprisingly Shri. Radheshyam Rai has not been examined by the Prosecution. This deficiency in the Prosecution’s case has also been underscored by the Trial Court. Furthermore the blood stained clothes of Shri. Radheshyam Rai have also not been seized by the Investigating Officer and no explanation for the same has been given P.W. 1 is the brother of the deceased and therefore is an interested witness especially owing to the long standing disputes between the deceased and the Respondents iii. Notwithstanding P.W. 1’s deposition in Paragraph 5 of his examination in chief there is an additional item of evidence on record that raises a doubt as to the presence of P.W. 1 at the spot of the incident. Shri. Dharmendra Singh has deposed that he saw Shri Radheshyam Rai the owner of the paan shop take the then injured deceased to a hospital in an autorickshaw However P.W. 3 does not mention the presence of P.W 1 at the spot of the incident or in the autorickshaw along with Shri. Radheshyam Rai The presence of P.W. 1 at Bhagwati Hospital along with the body of the deceased and Shri. Radheshyam Rai is 1 directly contradicted by two additional items of evidence a. The Emergency Police Register does not reflect the name of P.W. 1 despite the fact that he was the only relative of the deceased who was purportedly present at Bhagwati Hospital b. Contrary to P.W. 1’s deposition as to his whereabouts while at Bhagwati Hospital Shri Trimbak Lal Patil the Investigating Officer) and Shri. Dharmanand(P.W. 12 the police constable on duty) have deposed that the body of the deceased was in the morgue by the time P.W 11 arrived at Bhagwati Hospital. Therefore the question of P.W. 1 sitting and wailing beside the body of the deceased does not arise. In Paragraph 37 and 39 of his cross examination P.W. 11 states “37. It is true that in none of the panchanamas prepared in the hospital there is reference to presence of Jitendra Singh. It is true that in spot panchanama also there is not reference to his Emergency Police Register 38. … 39. …I did not make any 1 enquiries from constable on duty at the hospital as to who informed him about the four In view of our observations as above we find that a serious doubt has been raised as to whether Shri Jitendra Singh was even present at the spot of the incident or at the hospital thereafter which fells the Prosecution’s assertion of P.W 1 being an eyewitness to the incident entirely. Our observation is further strengthened with the fact that the blood stained clothes of P.W.1 have not been seized or recovered as evidence if it is his case that he carried the deceased alongwith Radheshyam Rai to the three hospitals. Shri. Sagar Gawade is also stated by the Prosecution to be an eyewitness to the incident. He has deposed as i. He was standing at the junction when the incident took place also witnessed it but did not appraoch the police as he was too scared Paradoxically he also stated that he along with a friend went to visit the Respondent Nos. 1 to 4 in jail in January 1998 and was not afraid of doing so because he was with his friend 1 In his cross examination he has deposed that after the incident and till the recording of his statements he was attending to his duty as a salesman of garments as usual Our observations on the evidence given by Shri. Sagar Gawadeare as follows Although the incident took place on 27.11.1997 the statement of P.W. 2 was recorded by the police authorities on 04.12.1997 i.e. seven days after the incident. The delay in the recording of P.W. 2’s statement is unexplained and prima facie suspicious It has come on record that P.W. 2 was found in the company of Respondent Nos. 2 to 4 when they were arrested. The same is confirmed by the Station House Diary produced by the Prosecution. As such even though Shri. Trimbak Lal Patil P.W. 11 the Investigating Officer) has deposed that P.W. 2 was separately summoned to the police station in the evening of 03.12.1997it cannot be ruled out that P.W. 2 was arrested along with the Respondent Nos. 2 to 4 and forced to be a prosecution witness Thus the evidence given by P.W. 2 does not inspire any confidence especially since his statements are 1 inconsistent with each other Shri. Dharmendra Singhanother witness examined by the Prosecution has deposed inter alia that he visited the video center of the Respondent No. 1 four days prior to the incident where he heard all the Respondents conversing about a quarrel that they had with the deceased and about how they plan to deal with the deceased However he has deposed that he had not mentioned this incident in the statement he gave to the police. We may state our analysis of the evidence given by this witness as follows The statement of P.W. 3 has been recorded on 08.01.1998 i.e. forty days after the incident even though P.W. 3 was available from the date of the incident till 30.11.1997 and thereafter from 08.12.1997 to 08.01.1998. This unexpected delay raises a serious doubt as to the veracity of the evidence given by P.W. 3 As stated earlier P.W. 3 did not mention Shri. Jitendra Singhas being present at the spot of the incident. Thus the evidence given by P.W. 3 does not even corroborate that of P.W. 1 and is in any case unreliable because of the aforementioned unexplained delay in recording his statement That apart P.W. 3 has not deposed about hearing "any plan" to eliminate the deceased from the Respondents 1 four days ago. He has deposed about hearing from the Respondents that "they will have to see him" due to their quarrel with the deceased. This statement amongst the Respondents does not amount to hatching any plan to eliminate or kill the deceased. Shri. Sunil Guptais the owner of the house from which the blood stained clothes and weapons purportedly used by the Respondents were seized. There are two circumstances pertinent to note in relation to the evidence given by P.W. 4 which are as follows It is important to note that P.W. 4 deposed that he had visited Arthur Road Jail with one Shri. Parag Kalusingh Pardeshi to meet the Respondents on 24.06.2000 which was before the recording of his evidence. This raises a serious doubt as to the veracity of the evidence given by P.W. 4 P.W. 4 deposed that the Respondent Nos. 2 to 4 had come to his room changed their clothes and kept the clothes they were wearing during the incident in the room. However the police authorities recovered only the clothes of the Respondent Nos. 3 and 4 in the course of their investigation. Thus the evidence given by P.W. 4 in this regard does not inspire any confidence. 1 At this juncture we may also highlight one relevant aspect of Shri. Trimbak Lal Patil who deposed that the blood stained clothes of the Respondent No. 2 were on his person at the time of arrest and were seized therefrom However the Respondent Nos. 2 to 4 were arrested on 03.12.1997 i.e. seven days after the incident it is impossible for the Respondent No. 2 to have worn the blood stained clothes for a period of seven days. Thus even the evidence given by the Investigating Officer in the present case is not without its shortcomings. Shri. Bansi Prasada pancha who witnessed the seizure of the weapons and blood stained clothes from Shri. Sunil Gupta is the witness to the inquest panchanama. Shri. Sureshbhai Patelis the witness to the spot panchanama. Dr. Manikprabhakar Sangale is the doctor who conducted the autopsy of the body of the deceased. Shri. Ramesh Mahimkaris the draftsman of the map of the scene of crime Shri. Dilip Amrellais a photographer who photographed the scene of the crime as well the body of the deceased in Bhagwati 1 Hospital. We have perused the depositions of these witnesses carefully but the same do not throw any light on the culpability of the It is a well settled position of law that reversal of acquittal is permissible on the touchstone of the principle that the appellate court should generally be loath in disturbing the finding of facts recorded by a trial court as the trial court has the advantage of seeing the demeanor of the witnesses and that the appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous unreasonable perverse and likely to result in The Hon’ble Supreme Court in the case of Murlidhar Gidda vs. State of Karnataka 1 while considering criminal appeals averted to the fundamental principles to be kept in mind by an appellate court while hearing an appeal against acquittal. Paragraphs 10 11 and 12 are relevant and read thus “10. Lord Russell in Sheo Swarup61 IA 398 :highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said :the views of the trial Judge as to the credibility of the 1 2014SCC 730 : 2014SCC690 1 witnesses the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial the right of the accused to the benefit of any doubt andthe slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” The opinion of Lord Russell has been followed over the years. 11. As early as in 1952 this Court in Surajpal Singhwhile dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed :Madan Mohan SinghAtleyAher Raja Khima Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 : 1956 Cri LJ 426] Balbir Singh Balbir Singh v. State of Punjab AIR 1957 SC 216 : 1957 Cri LJ 481] M.G. Agarwal1 Cri LJ 235] Noor Khan1 Cri LJ 167] Khedu Mohton2 SCC 450 1970 SCC479] Shivaji Sahabrao Bobade Shivaji Sahabrao Bobade v. State of Maharashtra 2 SCC 793 : 1973 SCC Cri) 1033] Lekha Yadav2 SCC 424 : 1973 SCCKhem Karan4 SCC 603 : 1974 SCC639] Bishan Singh3 SCC 288 : 1973 SCC914] Umedbhai Jadavbhai1 SCC 228 : 1978 SCC Cri) 108] K. Gopal Reddy1 SCC 355 : 1979 SCC Cri) 305] Tota Singh2 SCC 529 : 1987 SCCRam KumarSCC 248 : 1995 SCC Cri) 355] Madan Lal7 SCC 677 : 1997 SCCSambasivan5 SCC 412 : 1998 SCCBhagwan Singh4 SCC 85 : 2002 SCCHarijana Thirupala6 SCC 470 : 2002 SCC1370] C. Antony1 SCC 1 : 2003 SCC Cri) 161] K. Gopalakrishna9 SCC 291 : 2005 SCC1237] Sanjay Thakran State of Goa v. Sanjay Thakran 3 SCC 755 :2 SCC162] and Chandrappa Chandrappa v. State of Karnataka 4 SCC 415 :2 SCC325] . It is not necessary to deal with these cases individually Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal the appellate court must bear in mind i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal iii) Though the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case interference by the appellate court with the judgment of acquittal is not justified. Unless the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand they are likely to result in grave injustice the reluctance on the part of the appellate court 1 in interfering with such conclusions is fully justified and iv) Merely because the appellate court on reappreciation and re evaluation of the evidence is inclined to take a different view interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial In view of the above discussion and findings we may state that there are demonstrable flaws in the evidence given by the key prosecution witnesses. The Prosecution has heavily relied on the circumstantial evidence given by the three witnesses as alluded to and discussed above to make out its case against the Respondents However given that this evidence in our opinion is not only palpably erroneous but also unreliable to prove the chain of causation of the actual incident beyond reasonable doubt especially because Shri. Radheshyam Rai the first informant and owner of the paan shop has not been examined by the Prosecution The findings of the Trial Court conform with our reappraisal of evidence on record and hence we concur with the findings of the Trial Court in its entirety. In view thereof the impugned judgement and order does not call for any interference. Criminal Appeal stands dismissed with no order as to costs [ S. S. SHINDE J.] 2

Summary: The appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice, this was upheld as a part of the principle on which reversal of acquittal is based, in the recent matter of The State of Maharashtra v. Omprakash @ Munna Aliyar Singh &amp; Ors. [CRIMINAL APPEAL NO. 428 OF 2001], listed Bombay High Court, Criminal Civil Appellate Jurisdiction. The final proceedings of the case were taken place on February 10th 2022, and the said proceedings were presided by a coram comprising of Justice S.S. Shinde &amp; Justice Milind N. Jadhav. The facts, as presented before the court of law, are as follows. Respondent No. 1 and his father had a long-standing dispute with the deceased and his brother in respect of a room housing a manufacturing unit. The deceased and his brother had paid a consideration of Rs. 50,000.00 to the Respondent No. 1 and his father for the manufacturing unit. However, the latter demanded more money from the former, over and above the consideration that was already paid. On 27.11.1997 the deceased left the manufacturing unit. According to the Prosecution, the deceased was attacked and assaulted with deadly weapons. As a result, the deceased was injured seriously. However, on reaching the hospital, the deceased was pronounced dead. The court also places reliance on Murlidhar @ Gidda v. State of Karnataka [2014 (5) SCC 730 : 2014 (2) SCC (Cri) 690] where it was held that “the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.”  Court, after perusal of facts and evidences, held that “reversal of acquittal is permissible on the touchstone of the principle that the appellate court should, generally, be loath in disturbing the finding of facts recorded by a trial court as the trial court has the advantage of seeing the demeanor of the witnesses, and that the appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice.” In addition to the above, the court related the case with the principle and held that “we may state that there are demonstrable flaws in the evidence given by the key prosecution witnesses.. However, given that this evidence in our opinion is not only palpably erroneous, but also unreliable to prove the chain of causation of the actual incident beyond reasonable doubt. The findings of the Trial Court conform with our reappraisal of evidence on record, and hence we concur with the findings of the Trial Court in its entirety.” Judgment reviewed by Pranav Sharma