State of Maharashtra v. Krishna Mahadeo Lohar & Ors.

Judgment

(PER D.B.BHOSALE,J.)

1. This appeal is directed against the Judgment and order dated 9.7.1990 passed by the IInd Addl. Sessions Judge, Raigad, Alibag, in Sessions Case No.51 of 1987, by which all the respondents-accused have been acquitted. The respondents were charged and tried for the offence punishable under sections 307, 147, 148, 149, 336, 427 and 452 of the Indian Penal Code. It is alleged that all the respondents-accused, on

12.6.1986 at about 5.30 pm in the village Pen, formed an unlawful assembly and attempted to commit murder of Rambhau Borekar and Shammi Khan with the deadly weapons, like swords, Pharashis, iron-bars, sticks, soda-water bottles etc.

2. The incident of murder occurred on 12.6.1986 at about

5.30 pm. Rambhau Borekar (P.W.4) was in the courtyard and his family members including P.W.1-Neetabai Borekar and P.W.2 – Raghunath Borekar were in the house. At that time, there was a stone pelting, which forced all family members to come out of the house. Neetabai claims that when she came out, she saw 10- 12 persons standing in front of their house and they were armed 3 with weapons like swords, Pharashis, Soda-water bottles, crow- bars. She knew all those persons, out of which Jagannath- accused no.3, who was armed with sword, assaulted Rambhau Borekar on his head and right hand. As a result of the blows inflicted by accused no.3, Rambhau Borkear collapsed and became unconscious. Having seen the incident, Neetabai claims that she rushed to the police station and lodged a complaint against the accused. In the complaint, she named only accused no.3- Jagannath and stated that 7-8 persons from the village Antora assaulted her father-in-law – Rambhau Borekar. On the basis of the complaint, an offence came to be registered against the respondents and investigation was set in motion on the basis thereof. It is alleged that after assaulting Rambhau Borekar, all the accused fled from the scene of offence and thereafter they allegedly assaulted one Shammi Khan (P.W.3). This incident was admittedly not seen by Neetabai. In the complaint, Neetabai has stated that she heard about the assault on Shammi Khan. However, in her examination-in-chief she has not made any reference whatsoever to the alleged incident of assault on Shammi Khan. Police seem to have carried out investigation in respect of the assault on Rambhau Borekar as well as Shammi Khan together and submitted a chargesheet before the Judicial 4

Magistrate First Class, Pen. Since the case was exclusively triable by the Sessions Court, it was committed to the Court of Sessions, Raigad, Alibag vide order dated 24.2.1987. Thereafter, charges were framed and trial was conducted against all the respondents-accused. During the trial, the prosecution examined ten witnesses. Out of this, PWs 1, 2 and 4 were examined as eye-witnesses in respect of the assault on Rambhau Borekar and P.Ws 3 and 5 were examined as eye- witnesses to the incident of assault on Shammi Khan. The trial Court, after having considered the entire evidence on record, acquitted all the accused having observed that none of the eye- witnesses is worth believing in view of the discrepancies, omissions/contradictions and inconsistencies in their evidence. Even other evidence also held to be not cooperative to the prosecution case.

3. We have heard learned APP for the appellant and learned counsel for the respondents and with their assistance gone through the entire evidence so also the impugned Judgment to find out whether the order of acquittal is perverse and/or the learned Sessions Judge has committed manifest error of law in acquitting the accused. 5

4. The incident of assault on Rambhau Borekar, as narrated while stating the prosecution case, according to Neetabai, took place at 5.30 p.m on 12.6.1986. She states in her examination- in-chief that she saw Waman Patil and Jagannath Patil – accused nos 4 and 3 respectively, when she came out of the house, amongst the 10-12 persons, who were standing in front of their house and that accused no.3- Jagannath was holding sword. However, in the FIR she has named only accused no.3. In other words, she has not named any other accused either in the FIR or in her examination-in-chief. Though she has stated that the accused before the court were the same persons whom she had seen outside her house at the time of the incident holding weapons in their hands, she has not attributed any overt act to the other accused. She attributed specific overt act to accused no.3 only, who allegedly inflicted blows of sword on the head and right hand of Rambhau Borekar. She has not named the other accused in her deposition. Then, she has stated that she was afraid and she immediately rushed to the police station and reported the incident to the police and as per her narration a complaint was taken down and the offence was registered. It is very interesting to note that in the cross-examination Neetabai (P.W.1) has specifically stated that she knew all the accused before the court since about 10-12 years, however, she was 6 knowing accused no.3 only by name. Then, she has made reference to election of the Zilla Parishad and the rivalry between the two groups. She also made reference to the election of Sarpanch of Antora Gram Panchayat. In the cross, she has then stated that she took about 3-4 minutes to reach the police station. She has further stated that she went to the police station immediately after her father-in-law – Rambhau Borekar fell down. She went running to the police station, as stated by her in the cross. She has further stated that her complaint was taken down within 10-15 minutes. In view thereof , when a specific question was put to her as to whether she went to the police station at about 7.15 pm she simply stated that she did not know. The incident occurred at 5.30 pm. Then she has admitted that her three brother-in-laws and their wives and children were also in the house. Her brother-in-law Raghunath (P.W.2) was also in the house and he followed her to the police station after some time. Her another relative Gita was also with her when she went to the police station. Gita was, however, not examined by the prosecution. She has then stated that she was at the police station along with Gita and Raghunath till midnight. She has showed complete ignorance as to who removed her father-in-law to the hospital. Some material omissions were brought on record in the cross-examination. It 7 was also brought on record that the place of offence was surrounded by the houses of Shinde, Bhanushankar, Lohar etc. In the cross-examination she has also admitted that when she saw weapons in the hands of the accused she went back to her house. She was also cross-examined at length as to why male members in the family did not go to the police station to lodge report. We have examined her testimony in the light of other circumstances and, in our opinion, her answers to those questions were not satisfactory.

5. From the evidence of Neetabai (PW 1) we noticed that though Neetabai has stated that the incident occurred at 5 -

5.30 pm on 12.6.1986 and she rushed to the police station immediately, which was hardly 3-4 minutes away from the place of occurrence, the complaint was recorded at 7.15 pm. This delay of two hours has not been explained by the prosecution at all. In view thereof, it was vehemently contended on behalf of the respondents by Mr Nazmi, learned counsel, that the statement of Neetabai was not first in point of time, and he submitted that the statement of P.W.4- Rambhau Borekar was recorded before her statement and in view thereof the Sessions Court has, rightly, treated the statement of Rambhau Borekar recorded on 12.6.1986 as an FIR. In view thereof, we 8 scrutinized the evidence of P.W.4-Rambhau carefully. P.W.4- Rambhau has stated that he knew all the accused since their birth. In examination-in-chief he has stated that accused no.3 called him from the road and thereafter accused nos 7.8, and 10 dragged him out. Then, accused no.3 took out sword and dealt blows on his head and on his right hand which caused bleeding injuries to his head and the right hand. He has stated that his hand was cut on the spot. He became unconscious and regained consciousness after 3-4 days in the hospital. Over and above this, he has not named any other accused, nor has he attributed specific overt act to the other accused, except accused no.3. In the cross-examination he has denied that he was taken to Pen Hospital at about 7.30 pm. He further denied that on 12.6.1986 his statement was recorded by the police and they took his thumb impression on the said statement. This statement is placed on record and marked Exhibit-49 by the trial Court. When his statement (Exhibit-49) and the thumb impression thereon was shown to him he denied both. He has gone to the extent stating that he never narrated the incident to the police, nor did he disclose the names of assailants to the police. Then he stated that the police never inquired with him till the date of his examination before the court about the incident. Then he specifically denied the case put to him that his statements were 9 recorded twice by the police in this case and his thumb impressions were obtained on both the occasions. His second statement (Exh.48) was recorded by the police on 18.6.1986 and his thumb impression was also obtained on the said statement. He has denied the second statement dated 18.6.1986 also, which was recorded in the presence of doctor. Investigating Officer (P.W.10) has specifically stated that the second statement was recorded in the presence of the doctor, which fact Dr. Sawakhande (P.W.8) in his evidence has admitted. The answers given by this witness in the cross, create doubt about the veracity of his claim. We fail to understand why has he denied his both the statements.

6. The first statement (Exh-49) of Rambhau was recorded by one constable Dake. In this statement, recorded on 12.6.1986 at 7.30 pm., Rambhau has not named a single accused, whereas in the second statement dated 18.6.1986 he has named one Joma Patil, who is not shown as accused in the present case. In both these statements none of the respondents-accused was named by Rambhau, which fact is brought on record by the defence in the evidence of the investigating officer (P.W.10).

7. It is thus clear that the manner in which these witnesses 10 have narrated the incident before the police so also in the court and the timings mentioned by them undoubtedly create doubt about their testimonies and in view thereof the trial Court has rightly held that the evidence of these witnesses inspires no confidence.

8. The evidence of Raghunath Borekar (P.W.2) also, in our opinion, is not satisfactory. He has made improvement by naming few more accused. Even this witness has also not attributed specific overt act to the accused. Moreover, his conduct after the incident was not natural and, in view thereof, the trial court has rightly disbelieved his evidence also.

9. In the light of the evidence of the eye-witnesses, we also perused the evidence of Dr. Sawakhande (P.W.8) who has stated about the injuries sustained by P.W.4- Rambhau. The injury on the right hand is described by the doctor as crush injury with compound fracture to his right wrist. This injury, according to the doctor, was possible by hard and blunt object. In view of the opinion expressed by the doctor, the ocular version of all the three eye-witnesses that Rambhau was assaulted with sword on his hand, has not been accepted by the learned Sessions Judge. Having regard to the improvements, inconsistencies and 11 contradictions brought on record in the evidence of all the eye- witnesses coupled with the opinion expressed by the doctor, the trial Court has rightly held that their evidence is not worthy of credence and sufficient to bring home the guilt of the accused beyond reasonable doubt. We do not find any reason to take a view at variance with the one taken in the order of acquittal passed by the trial Court. The conclusions recorded by the trial Court are based on appreciation of oral evidence. Similarly, we do not find that the reasons recorded by the trial Court are perverse or unreasonable. We have examined the evidence and the impugned judgment, keeping in view the well settled principle of law that every accused is entitled to the benefit of doubt regarding his guilt and when the trial Court acquitted him, he retains the benefit in the appellate Court also.

10. That takes us to consider another aspect of the matter. Mr Nazmi, learned counsel for the respondents, vehemently submitted that the whole trial vitiates on the ground of misjoinder of charges. He submitted that the assault on Rambhau and the assault on Shammi had absolutely no connection with each other and these were two independent incidents not arising from same transaction. Rambhau and Shammi have no connection with each other and moreover the 12 complainant Neetabai in her examination-in-chief has not made any reference whatsoever to the incident of assault on Shammi Khan. Though some of the accused are same and even the nature of the offence is similar still they were two isolated incidents. The second incident of assault on Shammi Khan is not off-shoot of the incident with regard to the assault on Rambhau. There was absolutely no reason for the prosecution to club these two incidents and filed one single chargesheet and ultimately tried together on the basis of the complaint lodged by Neetabai (P.W.1). The trial Court has rightly held that this is a clear case of misjoinder of charges and, therefore, the trial vitiates. Learned APP could not and did not dispute the submissions advanced by Mr Nazmi, learned counsel for the respondents. She fairly submitted that these two incidents were not connected with each other and that they did not arise from the same transaction. In the circumstances, we do not find any reason to disturb the finding recorded by the trial Court that there was misjoinder of charges and, therefore, the trial vitiates.

11. The Apex Court in catena of decisions has laid emphasis on the general principles of criminal jurisprudence that the presumption of innocence in favour of the accused 13 further stands strengthened by the acquittal. It is also well settled that 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 a plausible one, the Appellate Court is not expected to interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. In other words, unless there is absolute assurance of guilt, the appellate Court is not expected to interfere with the order of acquittal.

12. Thus, on re-appreciation of the entire evidence on record which we are satisfied that it is definitely not sufficient to hold that the prosecution has proved beyond reasonable doubt the involvement of the accused. The findings recorded by the trial Court, in any case, cannot be termed as perverse. The jurisdiction of this court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality. In the present case, it cannot be stated that the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and 14 judiciously. In the result, we confirm the order of acquittal. The appeal is accordingly dismissed. (R.G.KETKAR,J.) (D. B.BHOSALE, J.)