BHASKARRAO & ORS. versus STATE OF MAHARASHTRA

[2018] 4 S.C.R. 751

BHASKARRAO & ORS.

STATE OF MAHARASHTRA

(Criminal Appeal No. 408 of 2014)

APRIL 26, 2018.

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860:

ss. 147, 148, 452 r/w s. 149, s.302/149 and s.506 – Prosecutionunder – For murder of person – by 16 accused – Trial Courtacquitted all the accused – High Court reversed the acquittal order– On appeal, held: Evidence of witnesses were not consistent –There were lot of improvement in the statement of witnesses – Therewere contradictory statements as regards the number of accusedpersons involved – All the witnesses were related – Materialindependent witnesses were not examined – Prosecution failed toprove motive – Panch witnesses as well as medical evidence did notsupport the prosecution case – Thus, chain of events cannot besaid to have been properly brought on record by the prosecution –In view of the shortcomings and discrepancies in the prosecutioncase, accused persons cannot be said to have formed unlawfulassembly with view to kill the deceased – Guilt of accused notproved beyond reasonable doubt – Acquittal justified.

Criminal Law:

Motive – Evidentiary value – Held: In case of circumstantialevidence, motive has role to play – But to dislodge prosecution’scase solely based on lack of motive would amount to giving creditto this factor, where it is not due.

Appeal:

Appeal against acquittal – Interference with andreappreciation of evidence by appellate Court – Scope of – Held:Appellate court is expected to be very cautious in interfering withthe order of acquittal – Its interference is called for, only whenthere are compelling reasons and substantial grounds.

AEvidence:

Circumstantial evidence – Value of circumstantial evidencerests in its accumulative effect – When several such evidences aretaken together, they may carry enough probative force to justify theconviction, if such evidence forms an unbroken chain of eventsBresulting in only one hypothesis so canvassed.

Witness:

Related witness – Evidentiary value – Held: Interest of thewitness does affect his testimony – Under the influence of bias, aman may not be in position to judge correctly – Therefore, witnessChaving interest in the result, if allowed to be weighed in the samescales with those who do not have any interest in the result, wouldbe to open the doors of the court for perverted truth.

Allowing the appeals, the Court

HELD: 1. In the present case, the trial court, followed by aDfull-fledged trial, comes to the conclusion and by cogent reasoningacquits the accused. In such case, the appellate Court is furtherburdened with the task of reaffirming the innocence of theaccused. In such cases, the appellate Court is expected to bevery cautious and its interference with the order of acquittal iscalled for only when there are compelling reasons and substantialEgrounds. In other words, the High Court has full power to reviewthe evidence upon which an order of acquittal is founded, yet thepresumption of innocence of the accused being further reinforcedby his acquittal by the trial Court, the findings of that Court whichhad the advantage of seeing the witnesses and hearing theirFevidence can be reversed only for very substantial and compellingreasons. [Para 23] [768-F-H; 769-A]

Surajpal Singh & Ors. v. The State, 1952 CriLJ 331 –relied on.

2. The prosecution relies on the circumstantial evidenceGto prove the case. The value of circumstantial evidence rests inits accumulative effect, that is to say, while single piece ofcircumstantial evidence may only slightly increase the likelihoodthat the accused is guilty, several such evidences taken togethermay carry enough probative force to justify the conviction, if suchHcircumstantial evidence forms an unbroken chain of events

resulting in only one hypothesis so canvassed. [Para 26][769-D-E]

3. The witnesses in the present case were inter-related,and this court should be cautious in accepting their statements.Whoever has been witness before the court of law, having astrong interest in result, if allowed to be weighed in the samescales with those who do not have any interest in the result, wouldbe to open the doors of the court for perverted truth. This soundrule which remain the bulwark of this system, and whichdetermines the value of evidence derived from such sources,needs to be cautiously and carefully observed and enforced. Thereis no dispute about the fact that the interest of the witness mustaffect his testimony is universal truth. Moreover, under theinfluence of bias, man may not be in position to judge correctly,even if they earnestly desire to do so. Similarly, he may not be ina position to provide evidence in an impartial manner, when itinvolves his interest. Under such influences, man will, eventhough not consciously, suppress some facts, soften or modifyothers, and provide favorable color. These are most controllingconsiderations in respect to the credibility of human testimony,and should never to be overlooked in applying the rules ofevidence and determining its weight in the scale of truth underthe facts and circumstances of each case. [Paras 27 and 31][769-F; 771-F-H; 772-A]

Dalip Singh & Ors. v. State of Punjab, [1954] 1 SCR145; Masalti v. State of U.P., [1964] 8 SCR 133; DaryaSingh and Ors. v. State of Punjab, [1964] 3 SCR 397;Harbans Kaur & Anr. v. State of Haryana, 2005 CriLJ2199; Namdeo v. State of Maharashtra (2007) 14 SCC150 : [2007] 3 SCR 939 – relied on.

4. The prosecution has heavily relied on the statement ofPW1. The allegation particularly levelled by her was that theaccused carried the assault on the deceased at three places i.e.,in front of the house of the deceased and near the house of PW3and at the fields of ‘Y’. However, in their depositions PWs 2, 4and 5 did not mention about such assault on the deceased in frontof PW3. It appears from the material that there are noeyewitnesses who had seen the accused attacking the deceased

ABC

Ain the fields of ‘Y’. The statements of PW3 also appears to be notconsistent throughout. At one point of time, he deposed that thedeceased had died in front of his house. Altogether differentstatement was given to the investigating authorities and in theCourt. Similar is the case of PW4, who has made improvementsas regards to the assault on the deceased. Also there were varyingBstatements by the prosecution witnesses as regards PW4, on theaspect of receiving the blow.Though she stated that she couldrecognize the assailants by their face as she does not know theirnames, yet test identification parade was not conducted which isfatal to the case of prosecution. [Paras 32 and 33] [77-B, C-F]C

5. PWs 2, 3 and 5 in their depositions gave contradictorystatements as to the involvement of number of accused personsin the crime and also about noticing the accused who draggedthe deceased while assaulting him and dragging towards schoolwhereas PWs 1 and 4 were silent on this aspect. There were alsoDcontradictory statements by prosecution witnesses as regardsthe availability of light at the time of occurrence. [Para 33] [772-G]

6. PW1 has not witnessed the chopping of the hand, whichresulted in the ultimate death of her husband. It is prudent forthis Court to not believe in absence of cogent evidence concerningEthe culpability of the accused, as her evidence is ridden withapparent internal contradictions and inconsistencies. [Para 34][773-C-D]

7. In case of circumstantial evidence, motive has role toplay, but to dislodge prosecution’s case solely based on lack ofFmotive would amount to giving credit to this factor, where it isnot due. The motive behind the accused assaulting the deceasedwas said to be the quarrel during which the deceased had slappedAccused No. 4 near grocery shop in the village. Incidentally,prosecution could also not prove the same by examining theindependent witness present at the grocery shop, though as manyGas 19 witnesses were examined by the prosecution. PW10, HeadConstable of the Police Station who reduced the oral complaintof PW1 into writing, categorically stated that PW1 had also notmentioned about previous quarrel at the time of lodging ofcomplaint. There were, undoubtedly lot of improvements in theHstatement of PW1 from the stage of complaint to her examination-

in-chief. Moreover, the evidence of PW1 concerning the quarrelis barred for being hearsay evidence. [Para 35] [773-F-G;774-A-B]

Hari Shanker v. State of U.P. (1996) 9 SCC 40 : [1996]2 Suppl. SCR 348; Ujjagar Singh v. State of Punjab,(2007) 13 SCC 90 : [ 2007] 13 SCR 653; State of U.P.v. Kishanpal & Ors., (2008) 16 SCC 73 : [2008]11 SCR 1048; Bipin Kumar Mondal v. State of WestBengal, (2010) 12 SCC 91 : [2010] 8 SCR 1036 – reliedon.

Chandler v. DPP [1964] AC 763 – referred to.

General Principles of Criminal Law by Jerome Hall88 (2d ed. 1960) – referred to.

8. Alternatively, the prosecution has alleged that motivefor the crime was that the accused party belongs to non-SC/STcommunity whereas the victim was belonging to SC community.The prosecution could not prove that the deceased belonged toScheduled Caste and accused were from non-Scheduled Casteor Tribe and the prosecution has failed to prove any charge againstthe accused including the charge under Section 3(i)(x) and 2(v)of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act. As against that charge, the High Court alsoconfirmed the view taken by the trial Court, which in other wordsproved the prosecution version to be wrong. [Para 36] [774-C-D]

9. An accused is, of course, vicariously guilty of the offenceeven if he is not directly indulged in the commission of offencebut committed by other accused, in case he is proved to be amember of unlawful assembly sharing its common object. It isevident that as per PW1-complainant, in the FIR the number ofpersons mentioned by her, who have entered into their housewas four, while about 20 to 25 persons were assembled outsidethe house and all of them assaulted the deceased. However, inthe examination-in-chief she deposed that there were in all 15assailants who attacked her husband. Though she failed to namethe assailants in her deposition she made out point that sheknew all the assailants. According to PW10, the author ofcomplaint, PW1 did not state about entry of accused Nos. 13 and

A15 into her house. There was also no mention by her at the timeof lodging of FIR about carrying an axe by A-11, sword by A-13,a pipe by A-15 and sticks by other accused. Going by the materialon record, it can be said that there was no satisfactory explanationon the part of PW1 for omissions in the FIR and improvementsbefore the Court. [Para 37] [774-F-H; 775-A]B

10. PW11, panch witness of seizure of bloodstained clothesof the accused Nos. 1 to 7, did not support the prosecution case.Similarly, the seizure is doubtful in the case of clothes pertainingto accused No. 11 to which PW13 was witness. Going by thematerial on record, the correctness of seizure of clothes of otherCaccused persons also do not inspire confidence.[Para 38][775-B-C]

11. PW6 who proved the recovery of weapons at the instanceof accused—appellants, could not point out his signature on therespective disclosure statements and seizure panchnamas. HeDalso admitted that Ext.72 (memorandum) and Ext. 73 (seizurepanchnama) does not bear his signature. PW9 deposed that afterrecovering sticks from the houses of accused Nos. 1 to 7, theyreturned to the village panchayat office where almost all the paperswere scribed. Based on the Chemical Analysis report, those sticksEcannot be considered to be incriminating articles as there wereno blood stains on those sticks. In the same way, the sword andaxe allegedly recovered from Accused Nos. 13 and 11 respectivelyalso do not have bloodstains. In these circumstances, theprosecution cannot be said to have proved the fact that the palmof the deceased has been amputated by the accused with thoseFweapons. [Para 39] [775-D-F]

12. In the opinion of the doctor-PW7, who conductedpostmortem on the body of the deceased, the cause of the deathwas due to heavy loss of blood owing to the amputation of hishand. However, his vital organs were found to be normal andGthere was no injury to the vital organs. PW7 has specificallymentioned that there was no laceration or contusion sustainedby the deceased and opined that had there been timely medicaltreatment, the deceased would have survived. At the same timeshe made it clear that in case person is beaten up with sticksHand iron pipe, as alleged by the prosecution in the present case,

contusions and lacerations are possible. In her cross-examination,the Doctor also revealed that because of amputation of hand andleg or both, person may not die. Thus, in totality, the medicalevidence is not corroborating with the prosecution’s case. [Para40] [775-G-H; 776-A-B]

13. Many persons, especially neighbours of the deceased,who witnessed the important circumstances and who could bevital independent witnesses have not been examined by theprosecution. There is no convincing explanation forthcoming fromthe prosecution side. [Para 41] [776-F]

14. In the midst of several contradictory statements amongthe prosecution witnesses, there is no proper explanation onrecord for PW1 and police searching for the deceased at the wellsand nullahs of the village, instead of searching around the school,as per the prosecution story PWs 2, 3 and 5 were fully aware thatthe deceased was dragged towards school. Moreover, looking atthe ambiguous narration of sequences described by the witnesses,the chain of events in the case cannot be said to have beenproperly brought on record by the prosecution. [Para 42] [777-B-C]

15. It is always the duty of the Court to separate chaff fromthe husk and to dredge the truth from the pandemonium ofStatements. It is but natural for human beings to state variantstatements due to time gap but if such statements go to defeatthe core of the prosecution then such contradictions are materialand the Court has to be mindful of such statements. [Para 42][777-C-D]

Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 –

relied on.

16. High Court has misconstrued certain aspects of the case.According to PW2 the incident occurred at about 9 p.m. In theFIR also the time was mentioned as 9 p.m. But the High Court inits judgment observed that the incident took place at about 7.30p.m. Thus, it is clear from the record that the alleged incidenthas occurred at 9 p.m. and not at 7.30 p.m. as assumed by theHigh Court, and there were also no eyewitnesses to the allegedamputation of the hand of deceased and causing his death. [Para43] [777-E-F, G]

A17. In view of the shortcomings and discrepancies in theprosecution case coupled with the improvements andcontradictions in the statements of prosecution witnesses, itcannot be said that the accused persons had really formed intoan unlawful assembly and carried out an assault on the deceasedthat too with view to kill him, so as to attract the provisions ofBcriminal law. In the facts and circumstances of the case, it isabundantly clear that the guilt of the accused persons was notproved beyond reasonable doubt. The trial Court had dealt withthe case in fool-proof manner by drawing out 11 importantcircumstances and delivered well reasoned judgment therebyCacquitting the accused, with which the High Court ought not tohave interfered. There were no compelling reasons andsubstantial grounds for the High Court to interfere with the orderof acquittal passed by the trial Court. [Para 45] [778-B-D]

Mahavir Singh v. State of Madhya Pradesh (2016) 10DSCC 220 : [2016] 8 SCR 394; L.L. Kale v. State ofMaharashtra & Ors. (2000) 1 SCC 295; Joginder Singh& Anr. v. State of Haryana (2010) 15 SCC 407;Nankaunoo v. State of U.P. (2016) 3 SCC 317 : [2016]4 SCR 627; Tota Singh and Anr. v. State of Punjab,1987 CriLJ 974; Ramesh Babulal Doshi v. State ofEGujarat, 1996 CriLJ 2867 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.408 of 2014.

From the Judgment and Order dated 21.12.2013 of the High Courtof Judicature at Bombay Bench at Nagpur in Criminal Appeal No. 290of 1998.

WITH

Crl. A. Nos. 520, 1328, 1228, 1223, 1229, 1330 & 1578 of 2014.

V. V. S. Rao, Sr. Adv., Ms. Anagha S. Desai, Varun Mathur,Dharmendra Kumar Sinha, Tadimalla Baskar Gowtham, Subodh K.Pathan, Nishant Ramakantrao Katneshwarkar, Advs. for the appearingparties.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. These appeals arise out of the commonjudgment and order, dated 21[st] December, 2013, passed by the HighCourt of Judicature at Bombay, Bench at Nagpur, in Criminal AppealNo. 290 of 1998 whereby the High Court reversed the order of acquittalpassed by the Additional Sessions Judge, Amravati in Sessions Trial No.40 of 1995 and convicted all the accused/appellants herein except accusedno. 6 (since dead) for the offence punishable under Sections 147, 148,452 read with Section 149, Section 302 read with Section 149 and Section506 of the Indian Penal Code (IPC).

2. The prosecution story in short is that, on 19[th] June, 1995 atabout 7 pm, in the village Jalka Shahapur an altercation had taken placebetween two villagers, namely Shamrao (deceased) and Balya (AccusedNo. 4) on the road near grocery shop over repayment of Rs.50/-. It

Awas alleged that Shamrao (deceased) had slapped Balya (Accused No.4) during the scuffle. After sometime, all the sixteen accused personsarmed with weapons, while entering the house of Shamrao hurling abuses,dragged him out of the house, assaulted on his hands and legs. They arealleged to have continuously assaulted Shamrao while simultaneouslydragging him to field where they finally cut his right palm and left theBplace. During the course of assault by the accused, Chanda (PW1) [wifeof Shamrao] followed them pleading not to hurt her husband and out offear she took shelter in some cattle shed. Later on she went to the houseof one Harshawardhan Bhalekar and informed him about the incident.Then Harshawardhan Bhalekar along with PW1 proceeded to AmravatiCand informed about the occurrence to the family members of Shamrao.After that they went to the office of Superintendent of Police, Amravatiwhere they were advised to lodge complaint at Nandgaon Peth policestation. Accordingly, complaint (Ext. 55) was lodged on 20[th] June,1995 being crime case No. 72 of 1995. It may be relevant to reduce

part of the FIR as under-

DName and addresses of accused, if any

: 1. Gajanan Chincholkar

2. Balya Bhagat

3. Pramod Khedkar

4. Raju Mohol +20 to 25 persons

ENames and addresses of suspects

Nature of offence with penal section. Give short descriptions of Fstolen property with its value if any.

The incident is that on the above dt. Time and place, when the :husband of the complainant was in the home, when he went to the house of Balya Bhagat out of the accused persons herein for demanding the money of fishes, the accused persons came to the house of the husband of the accused and the accused persons have beaten and pulled from the house and on account of the said occurrence, the offence is registered and taken for investigation.

above n the nt was to the of the for fishes, to the the ersons m the said is for

3. Dattatray Kulkarni, A.P.I. (PW17) took up the investigationand carried search for missing Shamrao in the Jalka Shahapur villageand ultimately on 21[st] June, 1995 on the information of one AnandaBhurbhure, PW1 and PW17 found the dead body of Shamrao, in thefields of one Yeshwant Thawale, without his right palm which they tracedat some distance. After conducting the panchanama of scene ofoccurrence, inquest report was drawn, clothes of the deceased wereseized, statements of some witnesses were recorded and the dead bodywas sent to the Civil Surgeon at Amravati for postmortem. All the accused,except accused no. 16 who was stated to be absconding, were arrestedand at their instance, alleged weapons used for the crime were recovered,disclosure statements recorded, seizure panchanama recorded and theaccused were got medically examined. After completion of investigation,charges were framed against accused nos. 1 to 15 to which the accusedpleaded not guilty and claimed trial.

4. In its effort to prove the guilt of the accused, prosecution hasexamined as many as 19 witnesses. Learned trial Judge after conductinga full fledged trial, came to the conclusion that the prosecution has failedto establish the guilt of the accused beyond reasonable doubt, therefore,all the accused, against whom trial was conducted (accused nos. 1 to15), were acquitted of the offences they were charged with. AccusedNo. 16, who was absconding, came to be arrested at the end of trial.Hence, the trial court directed separate trial against him.

5. Aggrieved by the order of acquittal passed by the trial court,the State of Maharashtra went in appeal before the High Court. Duringthe pendency of the appeal, before the High Court, Accused No. 6 expired.The High Court found fault with the acquittal order passed by the trialcourt and by its judgment which is impugned herein, convicted all theaccused before it except accused No. 6, for the offence punishableunder Sections 147, 148, 452 read with Section 149, Section 302 readwith Section 149 and Section 506, IPC. They were sentenced to undergoimprisonment for period of two years for the offence punishable underSections 147, 148 and 452, IPC. Whereas for the offence punishableunder Section 302 read with Section 149, IPC they were sentenced tosuffer imprisonment for life and to pay fine of Rs.5,000/- each, indefault, to further suffer imprisonment for one year. They were alsosentenced to suffer imprisonment for period of six months and to paya fine of Rs. 500/- each, in default, to further suffer period of one

Amonth imprisonment for the offence under Section 506, IPC. However,all the sentences were directed to run concurrently.

6. Dissatisfied with the judgment of the High Court in reversingthe order of acquittal, the Accused Nos. 1 to 5 and 7 to 14 are before usin these appeals assailing the judgment of the High Court. It appearsBthat Accused No. 15, Gajanan Pandurang Chincholkar, has not preferredan appeal against the judgment of the High Court.

7. It may be beneficial to note that the accused Nos. 1 (Motiram)and 3 (Ravindra) have filed Criminal Appeal No. 1330 of 2014, AccusedNos. 2 (Bhaskarrao), 9 (Maroti Bhaskarrao Bhagat) and 10 (BhagwatCBhaurao Bhagat) have filed Criminal Appeal No. 408 of 2014, AccusedNos. 4 (Balya) and 5 (Vishnu Bharao Bhagat) have filed Criminal AppealNo. 1578 of 2014, Accused No. 7 (Maroti Mahadeorao Kosare) hasfiled Criminal Appeal No. 1229 of 2014, Accused No. 8 (Laxman BhauraoBhagat) has filed Criminal Appeal 1328 of 2014, Accused No. 11(Prabhakar Narsaji Bhagat) has filed Criminal Appeal No. 1223 of 2014,DAccused No. 12 (Babarao Laxmanrao Adhao) has filed Criminal AppealNo. 1228 of 2014 and Accused Nos. 13 (Dilip Uttamrao Mankur) and14 (Pramod Devidas Khedkar) have filed Criminal Appeal No. 520 of2014.

8. On behalf of Accused No. 8, the arguments were advanced byEMr. V.V.S. Rao, learned senior counsel. Ms. Anagha S. Desai, learnedcounsel has argued on behalf of Accused Nos. 2, 7, 9 and 10 to 14, whileMr. Dharmendra Kumar Sinha, learned counsel made submissions inrespect of Accused Nos. 1, 3, 4 and 5. Having heard the argumentsadvanced by the respective counsel, as the order impugned is one andFthe same, we proceed to deal with all these appeals by commonjudgment.

9. It is the case of the appellants—accused that the entireprosecution story has been concocted to falsely implicate the innocentappellants and is not based on the true facts and circumstances. ThatGthere were several lapses in the prosecution theory. That the dead bodyof the deceased was found in field which is about two kms away fromthe house of the deceased, and there is no eyewitness to the factum ofaccused committing the murder of deceased. His amputated palm wasfound at some distance to his dead body, but there was no evidence onrecord as to who cut the palm of the deceased. There were also noHbloodstains on any weapon alleged to have been recovered by the

investigating authorities at the instance of accused. All the prosecutionwitnesses are inter-related and there was no independent witness tosupport the prosecution case. The trial Court has rightly discarded theevidence of interested witnesses.

10. It is also argued that the prosecution has improvised thecircumstances from the stage of lodging FIR to the conclusion of trial.In the FIR, there was no mention about the alleged quarrel that tookplace between the deceased and Accused No. 4 over matter of Rs.50/- near grocery shop. PW1 (wife of the deceased) introduced the storylater on. The owner of the grocery shop was not examined as witnesswhose evidence would be crucial to prove that quarrel has taken placewhich is the whole basis or provocation for the incident. It was alsoalleged that there were two other witnesses namely Charandas and Anant,but they too were not examined by the prosecution. In the FIR, thenames of accused were specified as only four persons, but 16 personshave been dragged into the case as accused. The statements of witnessesvaried as to the presence of the accused at the time of occurrence andtheir depositions are quite contradictory to the prosecution case. Therewas also no test identification parade conducted and all the accusedpersons are not familiar to the witnesses. The evidence of prosecutionwitnesses is unbelievable inasmuch as the allegation was that thedeceased was dragged on the ground for about 2 kms from his house tothe place where his dead body was found, even then there were noinjury marks on the body of the deceased.11. It is further submitted by the learned counsel that the HighCourt failed to take into consideration the crucial facts that no testidentification parade was conducted, no motive was established, no injurieson vital parts of the deceased were noted, and above all medical evidencedid not corroborate with the alleged ocular evidence. The High Courthas also failed to take note of the fact that the trial Court has not committedany legal error in appreciating the ocular and medical evidence to reachat the conclusion that the accused are innocent. The law is well settledby this Court with regard to fresh appreciation of evidence in an appealagainst acquittal that even if on the basis of evidence, there is possibilityof taking different view than that of the trial Court, the appellate Courtshould refrain from disturbing the findings and conclusion recorded bythe lower court. In view of the settled law, the High Court ought nothave interfered with the order of acquittal passed by the trial Court. Butby setting aside the order of acquittal passed by the trial Court, the High

ACourt has committed gross illegality by convicted the appellants—accused thereby causing miscarriage of justice which invites interferenceof this Court. In support of their arguments learned counsel appearingfor the accused—appellants relied on the judgments of this Court inMahavir Singh vs. State of Madhya Pradesh, (2016) 10 SCC 220,L.L. Kale Vs. State of Maharashtra & Ors. (2000) 1 SCC 295,BJoginder Singh & Anr. Vs. State of Haryana (2010) 15 SCC 407 andNankaunoo Vs. State of U.P. (2016) 3 SCC 317.

12. On the other hand, learned counsel appearing for the State—Mr. Nishant Ramakantrao Katneshwarkar, supported the impugnedjudgment and submitted that the learned trial Judge disbelieved theCevidence of prosecution witnesses for no valid and reasonable cause.The minor discrepancies in the depositions have been given undueimportance to pass the acquittal order against the accused, who in abrutal manner dragged the deceased to the fields and assaulted him withsticks, axe and sword. PW1—Chanda, wife of the deceased, tried herDbest to save her husband praying at the accused to show mercy, but allthe accused in pursuance of their common object, attacked the deceasedindiscriminately leading to his death. The High Court has correctlyassessed the facts and circumstances of the case and there was nolegal error in the impugned order seeking indulgence of this Court.

E13. We have given our consideration to the material placed beforeus and the arguments advanced by the learned counsel on either side.

14. As the trial court and High Court, having appreciated theevidence on record, has come to diametrically opposite conclusions,mandating herein to observe certain witness statements which may haveFan important bearing in this case. In the processes of appreciating theevidence at the appellate stage, we need to keep in mind the views ofthis court as expressed in Tota Singh and Anr. v. State of Punjab, 1987CriLJ 974 -

“The High Court has not found in its judgment that the reasonsGgiven by the learned Sessions Judge for discarding the testimonyof PW2 and PW6 were either unreasonable or perverse. Whatthe High Court has done is to make an independent reappraisal ofthe evidence on its own and to set aside the acquittal merely onthe ground that as result of such re-appreciation, the High Courtwas inclined to reach conclusion different from the one recordedHby the learned Sessions Judge. This Court has repeatedly pointed

out that the mere fact that the Appellate Court is inclined on are-appreciation of the evidence to reach conclusion whichis at variance with the one recorded in the order of acquittalpassed by the Court below will not constitute valid andsufficient ground for setting aside the acquittal. The jurisdictionof the Appellate Court in dealing with an appeal against an orderof acquittal is circumscribed by the limitation that no interferenceis to be made with the order of acquittal unless the approachmade by the lower Court to the consideration of the evidencein the case is vitiated by some manifest illegality or theconclusion recorded by the Court below is such which couldnot have been possibly arrived at by any court acting reasonablyand judiciously and is, therefore, liable to be characterisedas perverse. Where two views are possible on an appraisal ofthe evidence adduced in the case and the court below has taken aview which is plausible one, the Appellate Court cannot legallyinterfere with an order of acquittal even if it is of the opinion thatthe view taken by the Court below on its consideration of theevidence is erroneous.”

15. In Ramesh Babulal Doshi v. State of Gujarat, 1996 CriLJ2867, this Court observed:

“This Court has repeatedly laid down that the mere fact that aview other than the one taken by the trial Court can be legitimatelyarrived at by the appellate Court on reappraisal of the evidencecannot constitute valid and sufficient ground to interfere with anorder of acquittal unless it comes to the conclusion that the entireapproach of the trial Court in dealing with the evidence was patentlyillegal or the conclusions arrived at by it were wholly untenable.While sitting in judgment over an acquittal the appellate Court isfirst required to seek an answer to the question whether thefindings of the trial Court are palpably wrong, manifestly erroneousor demonstrably unsustainable. If the appellate court answers theabove question in the negative the order of acquittal is not to bedisturbed.”

16. Keeping the aforesaid observations in mind, we may notesome statements of the witnesses, who have deposed before the trialcourt concerning the incident. PW-1 [wife of the deceased], has deposedthat she came to know about the scuffle, from her husband, which took

ABC

Aplace between her deceased husband and accused no. 4 prior to theoccurrence of the incident. She further stated that while she was cookingthe dinner for her husband, accused no. 4, 11, 12, 13, 14, 15 and abscondingaccused (Raju) entered her house. The accused dragged her husbandoutside onto the courtyard. She states that she saw accused no. 11 wasarmed with an axe, accused no. 13 was armed with sword and accusedBno. 16 was holding an iron pipe. She further states that rest of the accusedwere armed with sticks and in total there were 15 assailants. Her husbandwas dragged to the courtyard of Vinayak Bhalekar, whose house is saidto be after three to four houses. At that spot, they again gave somebeating to the deceased. PW-1 states that she was continuouslyCrequesting the assailants to spare the life of her husband. At this instant,accused no. 11 is said to have threatened PW-1 so that she may notwitness the incident. Accordingly, she ran to the cattle shed of one SudhaBhalekar, who was attacked by accused no. 14 in the meantime, andremained hidden for about two hours out of fear. Thereafter, PW-1 wentto the house of Harshwardhan Balekar, who first accompanied her toDthe district head-quarters at Amravati, wherein she informed the familyof the deceased (parents-in-law and the brother-in-law) and thereafterwent to the Amravati police station. As they were advised to register thecase in Nandgaon Police Station, they came back to Nandgaon policestation to register the complaint.E

17. During the cross-examination she avers that PW-3, 4 and 5were closely related to her and the accused were also related inter se.Concerning the relationship between the accused no. 4 and the deceased,she states that the relationship between them were cordial. Lastly, shecould not assign any reason as to why the earlier scuffle between herFdeceased husband and accused no. 4 was not written in the FIR registeredby her.

18. PW-2 avers that on the day of the incident, while he waswatching television from inside the house, he heard some commotiontaking place outside his house. When he went outside the house, he sawGthat the accused were beating the deceased with weapons such as axe,pipe, swords and stick. he states that he saw accused no. 11 armed withan axe, accused no. 4 armed with bamboo stick, accused no. 13 armedwith sword and accused no. 16 was holding an iron pipe. As he wasafraid, he did not go behind the assailants. During the cross examination,he avers that there might have been more than twenty persons.H

19. PW-3, states that he saw the accused giving severe beating tothe deceased with sticks, swords, iron pipes and axe. He states that hesaw accused no. 16, 15 and 11 dragging the deceased towards the schooland he did not follow the accused out of the fear and on the followingday, deceased body was found in the field of one Yeshwant Sawai. Duringthe cross examination, he states that the deceased died in front of hishouse, due to severe beating given by the accused. Moreover, he admitsthat the deceased is his relative.

20. It may be noted that PW-4 and 5 have deposed to the sameeffect, concerning the incident. They have further admitted that theywere related to the deceased. At this point it may be relevant to noticethe witness statement of the doctor, who conducted the post-mortem[PW-7]. Concerning the stick blows on the body of the deceased, shenotes as under-

‘…Contusions and lacerations are possible in case personis beaten by sticks or from pipe. I did not find any lacerated woundor contusion sustained by the deceased and as such I did notmention such injury in P.M. Note….’

Concerning the cause of death, PW-7 states as under-

‘The injury sternum as described in Column No. 20 is possible incase person fall down on hard surface. Because of loss of blooddue to injury the deceased went into the shock and which resultedin his death. The deceased died due to loss of blood. Because ofloss of blood the heart chambers were found empty and otherorgans were found pale. Vital organs were intact. I did notfind any injury to any vital part of the body. Loss of blood isgradually loss of blood and it may take some time. In caseof timely medical treatment person may survive. Hands andlegs are non-vital part of the body. Because of the amputation ofhand and because of amputation of leg or both person may notdie. It is not always possible that person may die because ofincised wounds No. 1, 2 & 5 as described in Coloum No. 17’[sic.]

[emphasis supplied]

21. PW-10 was stationed as the head constable of Nandgaonpolice station at the relevant time when PW-1 registered the complaint.

AIt may be beneficial for the discussion to observe the cross examinationof the aforesaid witness, as under-

…3. The complainant PW1-Chanda did not state in hercomplaint the fact that Accused No.4 addressed abuses to herhusband when her husband demanded money to Accused No.4.BThe PW1-Chanda did not state in her complaint the fact thatAccused No.13 and Accused No.15 arrived and they entered intoher house. PW1-Chanda did not state in her complaint the factthat she requested the assailants not to beat her husband. ThePW1-Chanda did not state in her report Exh. 55 the fact thatAccused No.11 was armed with an axe, PW1-Chanda did notCstate in her report Exh. 55 the fact that the Accused No.13 washolding sword. The PW1-Chanda did not state in her report Exh.55the fact that Accused No. 15 was holding pipe. The PW1-Chandadid not state in her report Exh.55 the fact that the rest of theAssailants-Accused were holding sticks in their hands. PW1-DChanda did not state in her complaint Exh.55 the fact that theAccused-Assailants had beaten to her husband shamrao in thecourtyard….

From the aforesaid witness, it is clear that the FIR did not consist of allthose facts which were subsequently deposed by PW-1 and others beforeEthe court.

22. It may not be out of context to mention that the formal witnessesconcerning seizure such as PW11 and 13 have not supported the case ofprosecution in entirety.

23. Before we proceed to analysis of the case, we must firstFfocus on the aspect concerning the standard the High Court has to apply,while hearing case against an acquittal order of the trial court. In thecase on hand, the trial court, followed by full-fledged trial, comes tothe conclusion and by cogent reasoning acquits the accused. In such acase the appellate Court is further burdened with the task of reaffirmingGthe innocence of the accused. In such cases, the appellate Court isexpected to be very cautious and its interference with the order of acquittalis called for only when there are compelling reasons and substantialgrounds. In other words, the High Court has full power to review theevidence upon which an order of acquittal is founded, yet the presumptionof innocence of the accused being further reinforced by his acquittal by

the trial Court, the findings of that Court which had the advantage ofseeing the witnesses and hearing their evidence can be reversed onlyfor very substantial and compelling reasons [refer Surajpal Singh &Ors. v. The State, 1952 CriLJ 331].

24. From the facts and circumstances of this case, we are calledupon to examine, whether the High Court was justified in upsetting thefindings of the trial court and whether there were compelling reasonsfor the High Court to set aside the order of acquittal and convict theaccused appellant of culpable homicide amounting to murder?

25. We may note that out of eleven circumstances which the trialcourt has relied upon to find that the prosecution case was not provedbeyond reasonable doubt, we are of the opinion that we need toconcentrate on four of those circumstance, which may be sufficient, toportray that the case at hand is not proved beyond reasonable doubt.

26. There is no dispute as to the fact that the prosecution relies onthe circumstantial evidence to prove the case. It may be noted that, thevalue of circumstantial evidence rests in its accumulative effect, that isto say, while single piece of circumstantial evidence may only slightlyincrease the likelihood that the accused is guilty, several such evidencestaken together may carry enough probative force to justify the conviction,if such circumstantial evidence forms an unbroken chain of eventsresulting in only one hypothesis so canvassed.

27. Coming back to the appreciation of the evidence at hand, atthe outset, our attention is drawn to the fact that the witnesses wereinter-related, and this court should be cautious in accepting theirstatements. It would be beneficial to recapitulate the law concerning theappreciation of evidence of related witness. In Dalip Singh & Ors. v.State of Punjab, (1954) 1 SCR 145, J. Vivian Bose for the bench observedthe law as under-

witness is normally to be considered independent unless he orshe springs from sources which are likely to be tainted and thatusually means unless the witness has cause, such as enmity againstthe accused, to wish to implicate him falsely.

Ordinarily, close relative would be the last to screen the realculprit and falsely implicate an innocent person. It is true, whenfeelings run high and there is personal cause for enmity, that here

is tendency to drag in an innocent person against whom witnesshas grudge along with the guilty, but foundation must be laid forsuch criticism and the mere fact of relationship far from being afoundation is often sure guarantee of truth.

However, we are not attempting any sweeping generalisation.Each case must be judged on its own facts. Our observations areonly made to combat what is so often put forward in cases beforeus as general rule of prudence. There is no such general rule.Each case must be limited to and be governed by its own facts.

28. In Masalti v. State of U.P., (1964) 8 SCR 133, five-JudgeCBench of this Court has categorically observed as under-

There is no doubt that when criminal Court has toappreciate evidence given by witnesses who are partisanor interested, it has to be very careful in weighing suchevidence. Whether or not there are discrepancies in theevidence; whether or not the evidence strikes the Court

as genuine; whether or not the story disclosed by theevidence is probable, are all matters which must be takeninto account.

But it would, we think, be unreasonable to contend thatevidence given by witnesses should be discarded only onthe ground that it is evidence of partisan or interestedwitnesses. Often enough, where factions prevail in villagesand murders are committed as result of enmity betweensuch factions, criminal Courts have to deal with evidenceof partisan type.

The mechanical rejection of such evidence on the soleground that it is partisan would invariably lead to failure ofjustice.

No hard and fast rule can be laid down as to how much evidenceshould be appreciated. Judicial approach has to be cautious indealing with such evidence; but the plea that such evidence shouldbe rejected because it is partisan cannot be accepted as correct.

(emphasis supplied)

29. In Darya Singh and Ors. v. State of Punjab, (1964) 3 SCR397, this Court held that evidence of an eye witness who is near relativeof the victim, should be closely scrutinized but no corroboration isnecessary for acceptance of his evidence. In Harbans Kaur & Anr. v.State of Haryana, 2005 CriLJ 2199, this Court observed that-

There is no proposition in law that relatives are to be treated asuntruthful witnesses. On the contrary, reason has to be shownwhen plea of partiality is raised to show that the witnesses hadreason to shield actual culprit and falsely implicate the accused.

30. The last case we need to concern ourselves is the case ofNamdeo v. State of Maharashtra, (2007) 14 SCC 150, wherein thisCourt after observing previous precedents has summarized the law inthe following manner-

It is clear that close relative cannot be characterised as an‘interested’ witness. He is ‘natural’ witness. His evidence,however, must be scrutinized carefully. If on such scrutiny, hisevidence is found to be intrinsically reliable, inherently probableand wholly trustworthy conviction can be based on the ‘sole’testimony of such witness. Close relationship of witness with thedeceased or victim is no ground to reject his evidence. On thecontrary, close relative of the deceased would normally be mostreluctant to spare the real culprit and falsely implicate an innocentone.

31. From the study of the aforesaid precedents of this court, wemay note that whoever has been witness before the court of law,having strong interest in result, if allowed to be weighed in the samescales with those who do not have any interest in the result, would be toopen the doors of the court for perverted truth. This sound rule whichremain the bulwark of this system, and which determines the value ofevidence derived from such sources, needs to be cautiously and carefullyobserved and enforced. There is no dispute about the fact that the interestof the witness must affect his testimony is universal truth. Moreover,under the influence of bias, man may not be in position to judgecorrectly, even if they earnestly desire to do so. Similarly, he may not bein position to provide evidence in an impartial manner, when it involveshis interest. Under such influences, man will, even though not consciously,suppress some facts, soften or modify others, and provide favorable

Acolor. These are most controlling considerations in respect to the credibilityof human testimony, and should never to be overlooked in applying therules of evidence and determining its weight in the scale of truth underthe facts and circumstances of each case.

32. The prosecution has heavily relied on the statement of PW1Bthat the accused—appellants assaulted her husband with deadly weaponson his hands and legs while dragging him for about 2 kms from his houseto the fields, which led to his death. The weapons used in the crimewere stated to be sword, sticks, axe and pipe. Admittedly, there were nobloodstains found on any of the weapons allegedly recovered from theaccused. The allegation particularly levelled was that the accused carriedCthe assault on the deceased at three places i.e., in front of the house ofthe deceased and near the house of PW3—Vinayak Bhalekar and atthe fields of Yeshwant Thawale. However, in their depositions PWs 2, 4and 5 did not mention about such assault on the deceased in front ofVinayak Bhalekar house. It appears from the material that there are noDeyewitness who had seen the accused attacking the deceased in thefields of Yashwant Thawale. The statements of PW3—Vinayak Bhalekaralso appears to be not consistent throughout. At one point of time, hedeposed that the deceased had died in front of his house. Altogether adifferent statement was given to the investigating authorities and in theCourt. Similar is the case of PW4—Sudha, who has made improvementsEas regards to the assault on the deceased. Also there were varyingstatements by the prosecution witnesses as regards PW4—Sudha onthe aspect of receiving the blow.

33. The deposition of PW4—Sudha Bhalekar shows that she hadseen the involvement of A-1, A-4, A-11, A-13, A-14 and A-16 in theFcrime. Though she stated that she could recognize the assailants by theirface as she does not know their names, yet test identification paradewas not conducted which is fatal to the case of prosecution. In theirdepositions PWs 2, 3 and 5 gave contradictory statements as to theinvolvement of number of accused persons in the crime and also aboutGnoticing the accused who dragged the deceased while assaulting himand dragging towards school whereas PWs 1 and 4 were silent on thisaspect. There were also contradictory statements by prosecutionwitnesses as regards the availability of light at the time of occurrence.According to PW3—Vinayak, husband of PW4—Sudha, whose houseis the last in the mohalla and situated at distance of four other housesH

from the house of deceased, the incident took place at 9 pm. The waybehind his house goes to the school and there is tamarind tree in frontof his house and the house of Shamrao is not visible by sitting in thecourtyard of his house. In his cross-examination, he denied to havedeposed to police that the house of deceased Shamrao is situated in therear side of his house. He further stated, there is ‘L’ type turn from hishouse to the house of deceased which is not visible from his courtyard.According to him, deceased Shamrao died in front of his house and onthe next day, he saw the dead body of Shamrao in the field.

34. Now coming to the facts of the case, PW1 (wife of thedeceased) has not witnessed the chopping of the hand, which resulted inthe ultimate death of her husband. It is prudent for this Court to notbelieve in absence of cogent evidence concerning the culpability of theaccused herein, as her evidence is ridden with apparent internalcontradictions and inconsistencies.

35. Due to the nature and quality of evidence involved in thiscase, the prosecution relies on the motive to strengthen the case bybringing in the earlier scuffle, wherein the deceased had slapped theAccused no. 4. This Court has on number of occasions has expressed ageneral disdain towards motive in direct evidence cases[1]. On the otherhand this Court has never approved the extreme position as portrayed insome English cases[2] which is best explained by Jerome Hall, when hestated ‘[h]ardly any part of penal law is more definitely settled thanthat motive is irrelevant’.[3] We may note that the law in India is nowwell settled that in case of circumstantial evidence, motive has roleto play[4], but to dislodge prosecution’s case solely based on lack of motivewould amount to giving credit to this factor, where it is not due.[5] Themotive behind the accused assaulting the deceased was said to be thequarrel during which the deceased had slapped Accused No. 4 near agrocery shop in the village. Incidentally, prosecution could also not provethe same by examining the independent witness present at the grocery

1 Hari Shanker Vs. State of U.P., (1996) 9 SCC 40.

2 Chandler v. DPP, [1964] AC 763

3 Jerome Hall, General Principles of Criminal Law 88 (2d ed. 1960).

4 Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90) and State of U.P. Vs. Kishanpal

& Ors., (2008) 16 SCC 73.

5 Bipin Kumar Mondal v. State of West Bengal, (2010) 12 SCC 91.

Ashop, though as many as 19 witnesses were examined by the prosecution.PW10—Shrikrishna, Head Constable of the PS Nandgaon Peth whoreduced the oral complaint of PW1 into writing, categorically stated thatPW1 had also not mentioned about previous quarrel at the time of lodgingof complaint. There were, undoubtedly lot of improvements in thestatement of PW1 from the stage of complaint to her examination-in-Bchief. Moreover, the evidence of PW1 concerning the quarrel is barredfor being hearsay evidence.

36. Alternatively, the prosecution has alleged that motive for thecrime was that the accused party belongs to non-SC/ST communitywhereas the victim was belonging to SC community. But, in the opinionCof the trial Court, the prosecution could not prove that the deceasedbelong to Scheduled Caste and accused were from non-Scheduled Casteor Tribe and the prosecution has failed to prove any charge against theaccused including the charge under Section 3(i)(x) and 2(v) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.DAs against that charge, the High Court also confirmed the view taken bythe trial Court, which in other words proved the prosecution version tobe wrong.37. Now we need to concentrate on the other aspects of the casesuch as the contradictions in the evidence of prosecution witnesses as toEthe number of accused persons involved in the alleged crime and also inrespect of their identification thereby the very purpose of the prosecutionin proving the common object of unlawful assembly gets defeated toattract the provisions of Section 149, IPC. An accused is, of course,vicariously guilty of the offence even if he is not directly indulged in thecommission of offence but committed by other accused, in case he isFproved to be member of unlawful assembly sharing its common object.It is evident that as per PW1 (wife of the deceased)—complainant, inthe FIR (Ext. 55) the number of persons mentioned by her, who haveentered into their house was four, while about 20 to 25 persons wereassembled outside the house and all of them assaulted the deceased.GHowever, in the examination-in-chief she deposed that there were in all15 assailants who attacked her husband. Though she failed to name theassailants in her deposition she made out point that she knew all theassailants. According to PW10—Shrikrishna, the author of complaint,PW1 did not state about entry of accused Nos. 13 and 15 into her house.There was also no mention by her at the time of lodging of FIR aboutH

carrying an axe by A-11, sword by A-13, pipe by A-15 and sticks byother accused. Going by the material on record, it can be said that therewas no satisfactory explanation on the part of PW1 for omissions in theFIR and improvements before the Court.

38. PW11—Sagar, panch witness of seizure of bloodstainedclothes of the accused Nos. 1 to 7, did not support the prosecution case.According to him, police called him to the police station and obtained hissignature. Similarly, the seizure is doubtful in the case of clothes pertainingto accused No. 11 to which PW13—Gunwant was witness who statedthat he had seen those clothes for the first time in the village panchayatoffice and he had signed the paper at the instance of police withoutknowing the correctness of its contents. Going by the material on record,the correctness of seizure of clothes of other accused persons also donot inspire confidence.

39. It is also clear from the record that PW6—Sukhdev whoproved the recovery of weapons at the instance of accused—appellants,could not point out his signature on the respective disclosure statementsand seizure panchnamas. He also admitted that Ext.72 (memorandum)and Ext. 73 (seizure panchnama) does not bear his signature. PW9—Ananda Ramteke deposed that after recovering sticks from the housesof accused Nos. 1 to 7, they returned to the village panchayat officewhere almost all the papers were scribed. It is also important to notethat based on the Chemical Analysis report, those sticks cannot beconsidered to be incriminating articles as there were no blood stains onthose sticks. In the same way, the sword and axe allegedly recoveredfrom Accused Nos. 13 and 11 respectively also do not have bloodstains.In these circumstances, the prosecution cannot be said to have provedthe fact that the palm of the deceased has been amputated by the accusedwith those weapons.

40. In the opinion of Dr. Pushpa Sadhawani—PW7, whoconducted postmortem on the body of the deceased, the cause of thedeath was due to heavy loss of blood owing to the amputation of hishand. However, his vital organs were found to be normal and there wasno injury to the vital organs. There were incised wounds over dorsalaspect of right amputated wrist and forearm and lower part of the leg.PW7 has specifically mentioned that there was no laceration or contusionsustained by the deceased and opined that had there been timely medical

Atreatment, the deceased would have survived. At the same time shemade it clear that in case person is beaten up with sticks and iron pipe,as alleged by the prosecution in the present case, contusions andlacerations are possible. In her cross-examination, the Doctor alsorevealed that because of amputation of hand and leg or both, personmay not die. Thus, in totality, the medical evidence is not corroboratingBwith the prosecution’s case.

41. It is quite surprising that PW1—Chanda who witnessed thehorrific assault on her husband, remained hidden in the cattle shed forabout two hours and then went to the house of Harshwardhan Bhalekarto whom she had narrated the incident. After that, both of them, withoutCsearching for the deceased went to the house of PW1’s in-laws atAmravati. Then they visited the office of Superintendent of Police andthen they went to the police station to lodge the complaint. Ironically, thesaid Harshwardhan Bhalekar who could have been prime witness hasnot been examined. The conduct of PW1 and non-examination of suchDan important witness Harshwardhan Bhalekar, weakens the prosecutioncase. At the same time, there was no proper explanation forthcomingfor what purpose they visited the office of Superintendent of Police,instead of searching for the deceased or going to police station to lodgecomplaint. As per the evidence of PWs 1, 2 and 3 Laxman Bhalekar,Bhaurao, Arun Bhalekar and Namdeo Bhalekar are neighbours of theEdeceased living in the same vicinity, but none of them was examined.Another laches in the prosecution case is that in the FIR it was mentionedthat one Dhanjay Sontakke and Janardhan Alekar had also seen theaccused assaulting the deceased, but they too were not examined.Similarly, one Anant Bhurbhure who first found the dead body of theFdeceased in the fields of Yashwantrao, was also not examined. It isclear that all those persons, especially neighbours of the deceased, whowitnessed the important circumstances and who could be vital independentwitnesses have not been examined by the prosecution. There is noconvincing explanation forthcoming from the prosecution side.

G42. Another facet that creates doubt on the prosecution story isthat PW5—Maroti, the real brother of PW2—Narendra and nephew ofPW4—Sudha, in his cross-examination (Ext.70) differed with thestatement recorded by police and marked ‘A’ that he and his brother(PW2) saw the deceased lying in front of the door. According to him hedid not say that fact, police arrived in the village next day morning at 8H

am, and he went to the field along with police at 10 am. PW3—Vinayakhusband of PW4—Sudha, made statement that he had seen the deadbody in the field of Yashwant Thawale. PW2—Narendra has also statedthat at about 9.30 am on 20.6.1995, he along with other villagers foundthe dead body of the deceased in the said field. We notice that in themidst of several contradictory statements among the prosecutionwitnesses, there is no proper explanation on record for PW1 and policesearching for the deceased at the wells and nullahs of the village, insteadof searching around the school, as per the prosecution story PWs 2, 3and 5 were fully aware that the deceased was dragged towards school.Moreover, looking at the ambiguous narration of sequences describedby the witnesses, the chain of events in the case cannot be said to havebeen properly brought on record by the prosecution. It is always theduty of the Court to separate chaff from the husk and to dredge the truthfrom the pandemonium of Statements. It is but natural for human beingsto state variant statements due to time gap but if such statements go todefeat the core of the prosecution then such contradictions are materialand the Court has to be mindful of such statements [See: TahsildarSingh v. State of U.P., AIR 1959 SC 1012].43. We have also found from the impugned judgment that theHigh Court has misconstrued certain aspects of the case. According toPW2—Narendra the incident occurred at about 9 p.m. on 19.6.1995. Inthe FIR also the time was mentioned as 9 p.m. But the High Court in itsjudgment observed “insofar as the submissions regarding the availabilityof light is concerned, we find that the incident took place at about 7.30p.m. in the village in the month of June and looking to the availability oflight in the month of June in Vidarbha region, we have no hesitation inholding that the eyewitnesses had sufficient light to identify the accusedpersons”. It is clear from the record that the alleged incident has occurredat 9 p.m. and not at 7.30 p.m. as assumed by the High Court, and therewere also no eyewitnesses to the alleged amputation of the hand ofdeceased and causing his death.

44. At the conclusion of arguments, it is informed at the Bar thatthe trial Court had conducted separate trial in respect of Raju—AccusedNo. 16, who was earlier absconding, and acquitted him of all the chargesand the State has not preferred any appeal against his acquittal. Wehave also noticed that PWs 1, 2 and 3 have given contrary statements atthe subsequent trial in Special (Atrocities) Case No. 12 of 2008 held

Aagainst Raju—Accused No. 16, deviating from what they deposed inthe present case.

45. Taking note of the foregoing shortcomings and discrepanciesin the prosecution case coupled with the improvements and contradictionsin the statements of prosecution witnesses, it cannot be said that theBaccused persons had really formed into an unlawful assembly and carriedout an assault on the deceased that too with view to kill him, so as toattract the provisions of criminal law. In the facts and circumstances ofthe case, it is abundantly clear that the guilt of the accused persons wasnot proved beyond reasonable doubt. We are of the considered viewthat the trial Court had dealt with the case in fool-proof manner byCdrawing out 11 important circumstances and delivered well reasonedjudgment thereby acquitting the accused, with which the High Courtought not to have interfered. In our view, there are no compelling reasonsand substantial grounds for the High Court to interfere with the order ofacquittal passed by the trial Court. Added to the above, we are informedDthat the accused have already undergone about three years’ ofimprisonment before they were enlarged on bail.

46. Keeping in view the substratum of the prosecution case andthe material available on record, we are of the considered opinion thatthe prosecution has miserably failed to prove the guilt of accused beyondEreasonable doubt. In the aforementioned circumstances, we allow theseappeals, set aside the impugned order passed by the High Court andrestore the judgment and order passed by the trial Court in respect ofthe appellants before us. Resultantly, their bail bonds stand discharged.Pending applications, if any, shall also stand disposed of.

Kalpana K. Tripathy

Appeals allowed.