RAJU AMBADAS GANGEKAR v. THE STATE OF MAHARASHTRA

HELD: 1.1 There is no doubt, on the basis of the evidence which has emerged, in regard to the identity of the appellant as the assailant. The dying declaration Exh. 21 has a ring of truth. The deceased specifically deposed to the clothes which were worn by the assailant. PW-13, the beat constable who had witnessed the incident, corroborated the nature of the apparel worn by the accused/assailant. The clothes which were recovered from the appellant at the time of his arrest within a few hours of the incident, matched that description. Added to this, is the fact that the blood group on the stains which were found on the clothes, matched the blood group of the deceased. The identity of the appellant has been established beyond reasonable doubt. Undoubtedly, two of the witnesses i.e. PW-3 and PW-9 as well as two panch witnesses had turned hostile. However, there is no reasonable basis for the trial court to have disregarded and rejected the evidence of PW- 13, the beat constable, who was on duty. The presence of PW-13 at the spot where the incident took place was in the natural course of things. Nothing has been elicited in the course of his cross- examination to cast a doubt on his statement that he was assigned to duty at the place where the incident took place. Similarly, the mere fact that the panch witnesses in support of the discovery had turned hostile is no reason to discredit the case of the prosecution. The medical evidence in regard to the nature of the injuries is entirely consistent with the ocular evidence. [Paras 21, 22][11-B-F]

1.2 The High Court on the basis of the evidence on the record came to the conclusion that since the incident had been preceded by a quarrel, the case would not attract the provisions of Section 302. It is in this view of the matter, that the High Court has convicted the appellant under Section 304 Part II and sentenced him to imprisonment for a period of five years. The appellate court is justified in reversing an order of acquittal where the order of acquittal suffers from a perversity and has resulted in a miscarriage of justice. The High Court has furnished cogent reasons for coming to the conclusion that the charge against the appellant was established beyond reasonable doubt. The trial court 2 A B C D E F G H RAJU AMBADAS GANGEKAR v. THE STATE OF MAHARASHTRA has proceeded purely on the basis of surmises when it observed that it was unlikely that PW-13 had witnessed the incident. In failing to refer to crucial parts of the evidence, the trial court had fallen into a grievous error which was justifiably corrected by the impugned judgment of the High Court. The judgment of the trial court suffered from a clear perversity and had resulted in a miscarriage of justice. [Paras 23, 24][11-G-H; 12-A-C]