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Tuesday, July 10, 2018

“8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by 15 an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1479 OF 2015
MOTIRAM PADU JOSHI AND OTHERS …Appellants
Versus
THE STATE OF MAHARASHTRA ...Respondent
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated 30.07.2015 passed
by the High Court of Judicature at Bombay in Criminal Appeal No.174
of 1994 in and by which the High Court reversed the judgment of the
acquittal of the appellants/accused Nos. 3, 5, 7 and 8 and convicted
them under Sections 147, 148, 302 read with 149 IPC and sentenced
them to undergo life imprisonment.
2. Briefly stated case of the prosecution is that PW-2-Anant Budhaji
Joshi is the brother of deceased Machindra Budhaji Joshi. Both Anant
and Machindra were doing the work of electric fitting. PW-3-
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Kesarinath Bhagat and PW-4-Vasudeo Gaikar were also doing the
same work. Appellant Motiram Padu Joshi (A3), Ratan Maruti Vaskar
(A5), Devidas Maruti Vaskar (A7), Ramnath @ Ram Padu Joshi (A8),
deceased-Machindra and prosecution witnesses are residents of
village Owa-peth, Taluka Panvel, District Raigad. Appellants/accused
were belonging to congress party and the deceased and the
prosecution witnesses were from Shiv-sena party. In the election of
Zilla Parishad in 1992, both parties became inimical to each other.
3. On 26.04.1992, deceased Machindra had gone to village
Nandgaon for electric fitting work along with PWs 3 and 4 and they
returned at about 08.30 pm to the house of deceased. All three of
them had their dinner and were sitting on the cot in the courtyard. PW2
was thereafter taking his dinner inside the house. At about 09.30
pm, appellants along with other accused being armed with deadly
weapons like swords, knife, sticks and motor-cycle chain came to the
courtyard of the house of deceased Machindra. Appellant Motiram
(A3) was carrying sword in his hand and assaulted the deceased on
his head. Appellant Ratan (A5) attacked the deceased with the sword
on the legs of the deceased. Appellant Ramnath (A8) also attacked
the deceased with the sword on his head. Appellant Devidas (A7)
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attacked the deceased with knife on his foot and legs. Other accused
against whom the appeal is abated assaulted the deceased with
motor-cycle chain and sticks. On seeing the accused armed with
deadly weapons, PWs 3 and 4 got frightened and went inside the
house and stood near the window of the house and witnessed the
occurrence. Due to the assault, the deceased fell down from the cot
having sustained grievous injuries and PW-2 took the deceased in the
truck of his brother PW-5-Eknath Joshi to Taloja police station.
Considering the serious conditions of the deceased, he was sent to the
Municipal Dispensary at Panvel along with police constable Mhatre.
PW-15-Atmaram, Head Constable recorded the statement of PW-2,
based on which, FIR in Crime No.44/92 was registered under Sections
147, 148, 149 and 307 IPC. On the same night at about 11.30 pm,
deceased Machindra succumbed to injuries and the FIR was altered
from Section 307 IPC to Section 302 IPC.
4. Sub-Inspector Mr. Laxman Shejal (PW-16) had taken up the
investigation and he visited the spot and prepared the rough sketch
(Ex.A42). From the spot, he collected blood-stained quilt (Article No.3)
and also blood-stained soil and sample mud. The body was sent to
autopsy and PW-14-Dr. Ramrao Kendre conducted the post-mortem
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and noticed as many as twenty-six injuries in the nature of incised
wounds, contusions on the head, legs, right arm and all over the body
of the deceased. Dr. Ramrao Kendre opined that the cause of death
was “shock secondary to celebral contusion due to blood trauma over
occipital area”.
5. The accused were arrested on 27.04.1991. Based on the
disclosure statement of appellant Motiram, one sword (Article No.8)
was recovered on 09.05.1992. Swords (Article No.9) also came to be
recovered at the instance of appellants Ratan and Ramnath on
11.05.1992 and 10.05.1992. The motor-cycle chain and sticks also
came to be recovered from the other accused. The Chemical Analysis
Report disclosed that ‘A’ group blood was found on Article No.8 (sword
recovered at the instance of appellant Motiram) and Article No.12
(Motor-cycle chain). On completion of investigation, charge sheet was
filed against all the nine accused under Sections 147, 148, 302 read
with 149 IPC.
6. To prove the charges against the accused, the prosecution has
examined as many as sixteen witnesses and also produced material
objects and exhibited documents. The accused were questioned
under Section 313 Cr.P.C. about the incriminating evidence and
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circumstances and the accused denied all of them and stated that they
have been falsely implicated. Upon consideration of evidence, the trial
court pointed out that PW-2 has a criminal record and that his
evidence is improbable. The trial court also held that the presence of
PWs 3 and 4 was doubtful and their evidence is untrustworthy and
cannot be relied upon to convict the accused. The trial court further
held that the prosecution has not proved the guilt of the accused
beyond reasonable doubt and acquitted all the accused.
7. On appeal by the State, the High Court held that the evidence of
PWs 2 to 4 as to the overt act of the accused is consistent and
corroborated by the medical evidence and recovery of weapons. The
High Court held that the trial court erred in disbelieving the evidence of
eye witnesses and the reasonings of the trial court suffers from
perversity. Observing that prompt registration of FIR lends credence
to the prosecution case which is also strengthened by medical
evidence and recovery of weapons, the High Court reversed the
judgment of the trial court and convicted the appellants as aforesaid in
para (1). The High Court maintained the acquittal of accused Baburao
(A2).
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8. During the pendency of the appeal before the High Court,
accused Ragho Dharma Koli (A1), Rohidas Balram Joshi (A4),
Satyawan Balu Waskar (A6) and Dnyandeo Sakharam Joshi (A9) died
and the appeal against them stood abated.
9. We have heard Mr. Y.P. Adhyaru and Mr. Sidharth Luthra learned
senior counsel appearing on behalf of appellants and the learned
counsel appearing on behalf of State of Maharashtra. We have
perused the impugned judgment and carefully considered the rival
contentions and the evidence and materials placed on record.
10. There are three eye witnesses namely Anant, brother of
deceased (PW-2), Kesarinath (PW-3) and Vasudeo (PW-4). PWs 2 to
4 have consistently stated that on the date of incident, after having
dinner, deceased was lying on the cot in the courtyard and PWs 3 and
4 were sitting near him. PW-2 went inside and was taking meal. At
about 09.30 pm, the appellants and other accused armed with
weapons came there shouting and running. On seeing the accused
armed with deadly weapons, PWs 3 and 4 got frightened and went
inside the house. Appellant Motiram attacked the deceased with
sword on his head, appellant Ratan attacked the deceased with sword
on his legs, appellant Ramnath attacked the deceased with sword on
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his head and appellant Devidas attacked the deceased with knife on
his foot and legs. On hearing the alarm raised by deceased
Machindra, PW-2 came out and raised shouts and on seeing the
neighbours, the accused ran away from the spot. PWs 2 to 4 have
consistently spoken about the overt act of the appellants as mentioned
above.
11. Evidence of PW-2 and his credibility is attacked by the
appellants contending that:- (i) PW-2 though present in the house did
not go to the rescue of his brother Machindra and remained mute
spectator; and (ii) PW-2 has a criminal record. Just prior to the
incident, PW-2 went inside the house and was taking meals. On
hearing the alarm raised by his brother Machindra, PW-2 came
outside. As the accused were many in numbers and armed with
deadly weapons like swords, knife, motor-cycle chain and sticks etc.,
PW-2 being unarmed would have naturally become frightened and
may not have dared to interfere. Evidence of a witness is not to be
disbelieved simply because he has not reacted in a particular manner.
12. Likewise, the relationship of PW-2 with the deceased cannot be
the reason for doubting the testimony of PW-2. It is fairly well-settled
that relationship is not a ground affecting the credibility of a witness. In
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Mohabbat v. State of M.P., (2009) 13 SCC 630, this Court held as
under:-
“11. Learned counsel for the respondent State on the other hand
supported the judgment of the High Court.
“12. Merely because the eyewitnesses are family members their
evidence cannot per se be discarded. When there is allegation of
interestedness, the same has to be established. Mere statement
that being relatives of the deceased they are likely to falsely
implicate the accused cannot be a ground to discard the evidence
which is otherwise cogent and credible. We shall also deal with the
contention regarding interestedness of the witnesses for furthering
the prosecution version.
13. ‘5. … Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal
actual culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In
such cases, the court has to adopt a careful approach and analyse
evidence to find out whether it is cogent and credible.
………
To the same effect are the decisions in State of Punjab v. Jagir
Singh (1974) 3 SCC 277, Lehna v. State of Haryana (2002) 3 SCC
76 (SCC pp. 81-82, paras 5-9) and Gangadhar Behera v. State of
Orissa (2002) 8 SCC 381.”
The above position was also highlighted in Babulal Bhagwan
Khandare v. State of Maharashtra (2005) 10 SCC 404, Salim
Sahab v. State of M.P. (2007) 1 SCC 699 and Sonelal v. State of
M.P. (2008) 14 SCC 692 (SCC pp. 695-97, paras 12-13).”
As held in various decisions, judicial approach has to be cautious in
dealing with such evidence. It is unreasonable to contend that
evidence given by related witness should be discarded only on the
ground that such witness is related.
13. Evidence of PWs 3 and 4 is sought to be assailed on the ground
that their names were not mentioned in the First Information Report
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(FIR) and that they are interested witnesses. Of course, names of
PWs 3 and 4 were not mentioned in the FIR. Deceased Machindra
was critically injured and when he was taken to the police station, on
seeing his serious condition, deceased was sent to the hospital along
with police constable Mhatre. PW-2 remained in the police station to
lodge the complaint and his statement was recorded. His brother
having been critically injured, PW-2 must have been in a disturbed
mind and must have been in a hurry to rush to the hospital to save his
brother. Non-mention of the names of eye witnesses (PWs 3 and 4) in
the FIR should be examined in the situation in which PW-2 was
placed.
14. Furthermore, as pointed out by the High Court, FIR is not an
encyclopedia which should contain all the details of the incident. FIR
is not an encyclopedia which is expected to contain all the details of
the prosecution case. It may be sufficient if the broad facts of the
prosecution case about the occurrence appear. Omission as to the
names of the assailants or the witnesses may not all the times be fatal
to the prosecution, if the FIR is lodged without delay. Unless there are
indications of fabrication, the court cannot reject the prosecution case
as given in the FIR merely because of omission. In the present case,
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FIR was registered without delay and prompt registration of FIR itself
lends assurance to the prosecution case. The object of the FIR is to
set the law in motion. Omission to give the names of assailants or the
names of witnesses in the FIR is not fatal to the prosecution case.
The High Court was right in observing that non-mention of the names
of eye witnesses in the FIR can hardly be fatal to the prosecution case.
15. Evidence of PWs 3 and 4 is assailed on the ground that PWs 3
and 4 have not gone to the rescue of the deceased and it is quite
unbelievable that on seeing the accused who were armed with
weapons, both of them went inside the house. It is further submitted
that the trial court righty held that their evidence is not trustworthy and
the High Court was not right in intervening such finding and basing the
conviction on the evidence of PWs 3 and 4. In their evidence, PWs 3
and 4 have stated that on seeing number of accused armed with
deadly weapons got frightened and went inside the house and stood
near the window and saw the occurrence. Their evidence cannot be
doubted on the ground that they did not intervene in the attack nor
made attempts to save the deceased. On witnessing a crime, each
person reacts in his own way and their evidence cannot be doubted on
the ground that the witness has not acted in a particular manner. The
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evidence of PWs 3 and 4 cannot be doubted merely because they
have not acted in a particular manner.
16. We may usefully refer to the case in Rana Partap v. State of
Haryana, (1983) 3 SCC 327 as under:-
“6. Yet another reason given by the learned Sessions Judge to
doubt the presence of the witnesses was that their conduct in not
going to the rescue of the deceased when he was in the clutches of
the assailants was unnatural. We must say that the comment is
most unreal. Every person who witnesses a murder reacts in his
own way. Some are stunned, become speechless and stand rooted
to the spot. Some become hysteric and start wailing. Some start
shouting for help. Others run away to keep themselves as far
removed from the spot as possible. Yet others rush to the rescue of
the victim, even going to the extent of counter-attacking the
assailants. Every one reacts in his own special way. There is no set
rule of natural reaction. To discard the evidence of a witness on the
ground that he did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and unimaginative way.”
17. While appreciating the evidence of witness, approach must be
whether the evidence of witness read as a whole appears to have a
ring of truth and consistent with the prosecution case or to find out
whether it is against the general tenor of the case. Their evidence
cannot be doubted merely because they belong to opposite faction. All
that is required is that their evidence is to be scrutinized with care and
caution. On testing the evidence of PWs 2 to 4, the High Court found
that their evidence is consistent and credit worthy. We find no reason
to take a different view.
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18. The evidence of PWs 2 to 4 is corroborated by medical
evidence. Further, PW-14 opined that nineteen to fourteen injuries
could have been caused by swords (Articles 8 and 9). Oral evidence
of PWs 2 to 4 is thus corroborated by the medical evidence. PW-14-
Dr. Ramrao who conducted the post-mortem has noticed that “half of
the stomach with rice is not digested”. PW-14 opined that the
deceased died within two hours of his last meal which again is
consistent with the evidence of PWs 2 to 4. Medical evidence of PW14
lends assurance to the evidence of PWs 2 to 4.
19. Prosecution case is further corroborated by recovery of weapons
from the accused. Based on the disclosure statement of appellant
Motiram, one sword (Article No.8) was recovered and another sword at
the instance of appellant Ratan (Article No.9) was recovered and
another sword was also recovered on the disclosure statement of
appellant Ramnath. Chemical Analysis Report (Ex. A32) showed that
the blood-stained found on the quilt seized from the scene of
occurrence was that of ‘A’ group. ‘A’ group blood was also detected on
swords which were recovered, based on the disclosure statement of
appellants Motiram (Article No.8) and Ratan (Article No.9). The
presence of ‘A’ group blood (Blood Group of deceased) on the
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weapons recovered is yet another piece of evidence corroborating the
evidence of PWs 2 to 4 and strengthening the prosecution case.
20. PW-14-Dr. Ramrao noticed that the thighs and legs of the
deceased was smeared with mud. Learned senior counsel for the
appellants submitted that in view of the presence of mud on the body
of the deceased, serious doubts arise as to the time and place of
occurrence and that there is no possibility of the occurrence having
taken place in the courtyard of the house of deceased Machindra.
This submission does not merit acceptance for more than one reason.
Firstly, as pointed out earlier, PW-16-Laxman Shejal, Investigating
Officer had recovered blood-stained quilt (Article No.3) from the scene
of occurrence i.e. courtyard of house of the deceased and also bloodstained
mud and sample mud. Chemical Analysis Report (Ex. A32)
showed presence of ‘A’ group blood in the quilt. While narrating the
occurrence, eye witnesses have stated that after the attack, the
deceased had fallen down from the cot; in that course, thighs and legs
of the deceased might have been smeared with mud. The presence of
mud on the thighs and legs therefore does not raise doubts about the
prosecution case. This aspect of submission advanced by the
appellants has been elaborately considered by the High Court in para
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(42) of its judgment. As rightly observed by the High Court, this is too
insignificant a fact to give importance so as to disbelieve and discard
the entire prosecution case as such.
21. Learned senior counsel for the appellants then contended that
only when there are compelling and substantial reasons, the High
Court can interfere with the order of acquittal and in the present case,
there were no such compelling circumstances or glaring mistakes in
the judgment of the trial court to reverse the order of acquittal.
22. It is fairly well-settled that in an appeal against the order of
acquittal, the appellate court would be slow to disturb the findings of
the trial court which had the opportunity of seeing and hearing the
witnesses. In an appeal against the order of acquittal, there is no
embargo for reappreciating the evidence and to take a different view;
but there must be strong circumstances to reverse the order of
acquittal. In the appeal against order of acquittal, the paramount
consideration of the appellate court should be to avoid miscarriage of
justice.
23. While considering the scope of power of the appellate court in an
appeal against the order of acquittal, after referring to various
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judgments, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415,
this Court summarised the principle as under:-
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both
on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are
not intended to curtail extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more in the nature
of “flourishes of language” to emphasise the reluctance of an
appellate court to interfere with acquittal than to curtail the power of
the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case
of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.”
24. In Kallu alias Masih and others v. State of M.P., (2006) 10
SCC 313, this Court held as under:-
“8. While deciding an appeal against acquittal, the power of the
appellate court is no less than the power exercised while hearing
appeals against conviction. In both types of appeals, the power
exists to review the entire evidence. However, one significant
difference is that an order of acquittal will not be interfered with, by
15
an appellate court, where the judgment of the trial court is based on
evidence and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a different view
is possible. The appellate court will also bear in mind that there is a
presumption of innocence in favour of the accused and the accused
is entitled to get the benefit of any doubt. Further, if it decides to
interfere, it should assign reasons for differing with the decision of
the trial court.”
25. In the present case, as held by the High Court, the trial court has
not properly appreciated the evidence and its findings are perverse.
When the approach of the trial court is perverse, in an appeal against
the order of acquittal, a duty is cast upon the High Court to
reappreciate the evidence. The deceased had sustained as many as
twenty-six injuries. PWs 1 to 3 have consistently spoken about the
incident and that the appellants were armed with deadly weapons and
the overt acts of the appellants which is corroborated by the medical
evidence and also by recovery of weapons from the
appellants/accused. As observed by the High Court, the trial court
gave importance to insignificant aspects like “smearing of the thighs
and legs of the body with mud” and the conduct of the witnesses as to
why they have not reacted in a particular manner and while doing so,
the trial court failed to appreciate the substratum of the prosecution
case. The High Court on being satisfied that the conclusion reached
by the trial court was erroneous reversed the order of acquittal
16
recorded by the trial court. We do not find any good ground to
interfere with the judgment of the High Court.
26. In the result, the conviction of the appellants under Section 302
IPC read with Section 149 IPC is confirmed and the sentence of life
imprisonment imposed upon each of them is confirmed and this appeal
is dismissed.
.…….…………...………J.
 [RANJAN GOGOI]
…………….……………
J.
 [R. BANUMATHI]
New Delhi;
July 10, 2018
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