JUDGMENT
Sahai, J.
1. The Appellant, aggrieved by the Judgment and Order dated 26th August, 1983 passed by the Additional Sessions Judge, Sangli, in Sessions case No. 16 of 1983, acquitting the Respondent for an offence punishable under Sections 302 r/w 34 I.P.C. and 201 r/w 34 I.P.C., has come up in appeal before us.
It is pertinent to point out that alongwith the Respondent, his two real brothers Jyoti Somanna Sangolkar and Hariba Somanna Sangolkar were also tried, but they have been acquitted vide the impugned judgment.
2. Briefly stated, the prosecution case runs as under :
Deceased Jaywant Appa Sangolkar was the cousin of the Respondent and the acquitted accused. He, the Respondent and the acquitted accused, resided in Sangolkar Vasti, which is situated at a distance of about 1/2 k.m. from village Khairav. The house of Jaywant Appa Sangolkar was adjacent to that of Respondent. At the time of the incident, Jaywant was residing in his house with his wife Kondabai (PW-11), the informant; his son – Appa (the second deceased); and some others. At a distance of about 400 feet from the Vasti was the temple of Lord Mahalingraya and people of the Vasti are said to have been visiting the temple; specially on Amavasya day. Geetram Kshirsagar (PW-12) was the pujari of the temple. He went there every morning and evening.
There was an enmical strain between Jaywant, Respondent and the acquitted accused. That was on account of the dispute over the boundary of their Court-yards; adjoining lands and alike matters. It is said that, about two years prior to Jaywant’s murder, the Respondent and acquitted accused had encroached upon his land. It is also said that on last Diwali, there was a quarrel between the acquitted accused Jyoti Somanna Sangolkar and Jaywant because the cattle of the former had trespassed in the land of the latter. Ever since then Jaywant on one hand; and the Respondent and others on the other were not on talking terms. It is said that Jaywant had gone in the village requesting Yellappa Dhomre and Laxman Yedve to settle the disputes, but the Respondent and the acquitted accused did not let them settle the same.
The immediate motive for the crime is said to be that, a month prior to the murder of Jaywant, his goat was stolen. The Respondent and the acquitted accused had a feeling that they were being accused for the theft.
It is alleged that on 17-8-1982, which was a Amavasya day, at about 7 p.m., Geetram Kshirsagar PW-12 followed by Jaywant and his son Appa came to the temple. A little later, the Respondent also came there. It is said that near the temple was a Deepmal. Jaywant, after leaving his son Appa inside the temple, went to the Deepmal for pouring oil. At that time, it started raining. Consequently, Jaywant came inside the temple; took Appa and thereafter, followed by the Respondent left the temple. The evidence is that, while Jaywant, Appa and the Respondent were in the temple, one Krishna Kshirsagar (PW-14) also came to the temple. He is said to have followed Jaywant, Appa and Respondent when they left the temple.
3. The evidence of Krishna Kshirsagar (PW-14) is that, since it was raining and wind was blowing, he was walking hurriedly flashing his torch. In torch-light he saw the Respondent assaulting Jaywant with an axe on the bandh. He also saw that the acquitted accused were standing by the side of bandh. Jaywant fell down on the ground as a consequence of the assault. His son Appa was with him. When he flashed his torch, the Respondent threatened him saying that he should not disclose the fact to anybody else and if he did so, he would suffer the same fate. From the evidence of this witness, it appears that, Appa’s murder was not committed in his presence. On account of the warning given by the Respondent. Krishna Kshirsagar came to his house and did not move out for 3 days.
4. Meanwhile, when Jaywant and Appa did not return to the house, Kondabai, their wife and mother respectively, got worried. The evidence of Geetram Kshirsagar is that, while he was on his way to his house from the temple and was passing in front of Kondabai’s house, she asked him about Jaywant and Appa. She told him that they had not returned. Geetram Kshirsagar told her that, just before it had started raining, both of them, followed by the Respondent, left the temple. Consequently, a frantic search was launched to trace out Jaywant and Appa. The next day a missing report was lodged by Bhagwan (PW-18), the cousin of Jaywant. On 21-9-1982, the corpse of Jaywant and Appa was found in the tank. The FIR of the incident was lodged on 22-9-1982 by Kondabai (PW-11) at Police station Jath. The F.I.R. is Exhibit 35. In the said F.I.R., a suspicion is cast against the Respondent as being the murder of the deceased persons.
5. The autopsy on the dead body of the deceased was conducted on 22-9-1982 by Dr. Vasant Krishnaji Suryavanshi (PW-13). On the corpse of Jaywant he bound 7 incised wounds, which were accompanied by massive internal damage, involving in large vessels in neck on the right-side being but and fracture of 6th and 7th cervical vertebrae.
On the person of Appa, Dr. Vasant Suryavanshi found an incised wound 6″ x 1″ on the left-side of neck. The depth was spinal cord. There was also extensive internal damage inasmuch as, there was fracture of mandible; large vessels were cut at the side of neck and there was fracture of 7th cervical vertebrae on the left-side.
In the opinion of the Doctor, both the deceased persons had died on account of ante-mortem injuries which they had suffered in their neck region. It may also be mentioned that, Dr. Suryavanshi categorically stated that the injuries of both the deceased persons could be caused by the axe (Article 17) shown to him.
6. The investigation was conducted by P.S.I. Suryakant Nimbalkar (PW-23). He took out the corpses of the deceased persons from the tank and sent them for autopsy.
Pursuant to the arrest of the Respondent, on 23-9-1982, he produced him before the Court and obtained police remand for 7 days. It is said that during course of interrogation, the Respondent informed him that he would show the place of offence. Consequently, he called public panchas and alongwith them and the respondent went to a place situated at a distance of about 250 feet from the temple of Lord Mahalingraya. At the said place, which was near the bandh, and which was pointed out by the respondent, he found some blood. He recovered it under a panchnama.
On 25-9-1982, the Respondent showed his willingness to get the weapon of assault – axe recovered. Consequently, he called panchas – one of them being PW-4 Mohhiudin Jamadar. Sometime thereafter alongwith the Respondent, the panchas and the police personnel he started on a jeep. He proceeded to a place near Gram Panchayat Office. The respondent took them to a shed at Sangolkar vasti. On reaching in front of his house, he called his wife. She came out. Thereafter, the Respondent took out from the shed a blood stained axe. The said axe was recovered under a panchnama.
On 26-9-1982, while the Respondent was in custody. He showed his willingness to get the blood stained clothes recovered. Consequently, public panchas were called. The police personnel alongwith the public panchas and the respondent went to the cattle shed near house of the respondent and from there on respondents pointing out recovered the blood stained banian and Dhoti. The said recovery was effected under a panchnama. During the course of investigation, statement of Geetram Kshirsagar, under Section 164 Cr.P.C. was recorded.
After completing the investigation, on 19-2-1982, the Respondent and the acquitted accused were chargesheeted.
7. The case was committed to the Court of Sessions in the usual manner. In the Trial Court, the Respondent and others were charged on the counts mentioned in paragraph 1. To the said charges, they pleaded not guilty and claimed to be tried. Their defence was that of denial.
During the trial, the prosecution examined as many as 23 witnesses. One of them, Krishna Kshirsagar (PW-14), was an eye-witness.
In defence, no witness was examined.
After recording :- The evidence adduced by the prosecution; the statement of the Respondent and others under Section 313 Cr.P.C.; and hearing learned counsel for the parties; the Trial Judge acquitted the Respondent and the two co-accused on all the counts. Hence this appeal.
8. We have heard Mr. S. R. Borulkar, learned Additional Public Prosecutor for the Appellant; and Mr. Shirish Gupte, learned counsel for the Respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered by the prosecution; the statement of the Respondent and the acquitted accused persons under Sec. 313 Cr.P.C.; and the impugned judgment. After thoughtfully reflecting ever the matter, we are implicitly satisfied that there is no substance in this appeal and it deserves to be dismissed. At the very outset, we would like to observe that, we are seized of the matter in an appeal against acquittal. Although the Code of Criminal Procedure draws no distinction between the powers of Appellate Court in an appeal against acquittal from those of an appeal against conviction, but the legal position which has crystallized as a result of a catena of decisions of Apex Court is that, the Appellate Court should not interfere with an order of acquittal unless appreciation of evidence is grossly unreasonable or the order of acquittal has been occasioned by a manifest illegality resulting in failure of justice. It is with this legal perspective, we have examined the impugned judgment.
9. We would straightway like to observe that, the learned Trial Judge was wholly justified in rejecting the testimony of the solitary eye-witness of the incident Krishna Kshirsagar (PW-14). In paragraphs 19, 20, 21 and 22 of the impugned judgment the learned trial Judge has given his reasons for rejecting the same and we find them to be weighty. Broadly speaking, there are two principal infirmities in the statement of this witness which falsify his claim of having seen the incident. The first is that, for over 5 days from the date of incident, he did not disclose the incident to anyone. The prosecution sold out a reason explaining such a conduct of this witness, namely the respondent had threatened him that in case he disclosed the incident to anyone, he would meet a fate similar to that of Jaywant. We are not impressed with the said reason. The evidence is that, on the next day of the incident, the police had come in village. In our view, if he mustered courage to disclose to the police the incident after 5 days, he could have very well mustered courage to disclose it on the following day. Further in our judgment, there remains no justification for his having not informed his wife or other family members about the incident. In his cross-examination, when he was specifically asked in paragraph 5, he stated that he stayed for 3 to 4 days at his house and did not disclose the incident even to his family members. This, we are not prepared to accept.
The second infirmity is that, in his cross-examination, in paragraph 3, he admitted that while he was on his way to Sangolkar Vasti, where he had his relations, he saw the incident. However, we do not find the fact that he was on way to his relations having been mentioned in his statement under Section 161 Cr.P.C. We are not prepared to believe him when he says that he had stated it to the police and the police did not write it. It is significant to point out that this witness has stated that there was a shorter way to his house and had he not to visit his relations, he would have taken that way.
In our view, on account of the said two infirmities in his evidence, the learned trial Judge was wholly justified in rejecting his evidence.
9-A. The Judicial Committee of the privy council, in the well-known case of Sheo Swarup v. King Emperor, , has observed that in an appeal against acquittal, the Appellate Court should attach great weight to the views of the trial Judge regarding the credibility of witnesses, because he has had the advantage of watching their demeanour. We are in respectful agreement with the said observations of the Privy Council.
If after watching the demeanour of Krishna Kshirsagar, the trial Judge concluded and for weighty reasons in our judgment, that he had not seen the incident, we would not be justified in distributing that finding.
9-B. Our hunch is that in its endeavour to make its case doubly-strong prosecution planted Krishna Kshirsagar as an eye-witness in the instant case. And if that could happen the possibility of recoveries, ostensibly shown to be on the pointing out of the respondent, of being manufactured by the prosecution cannot be excluded.
10. Mr. Borulkar, learned Counsel for the appellant, vehemently urged that, even if the ocular account is excluded the cogent circumstancial evidence adduced by the prosecution leads to the inference that the respondent committed the crime. In his contention that circumstantial evidence is as under :-
(a) Motive – detailed in paragraph 2.
(b) last seen :- Geetram Kshirsagar (PW-12), Pujari of the temple, at about 7 p.m. on 17-9-82 saw the deceased persons Jaywant and Appa, immediately followed by the Respondent, leaving the temple. At that time, the acquitted accused, Jyoti Sangolkar and Hariba Sangolkar, were standing near bandh; and
(c) Discovery of the place of incident, the weapon of assault; and blood stained clothes (of the respondent) on the pointing out of the respondent.
10A. It cannot be disputed and true to his customary fairness, neither Mr. Borulkar disputed, that if either circumstance (b) or (c) is disbelieved the residual circumstantial evidence would not unerringly lead to the inference of the guilt of the respondent and that being so, the acquittal of the respondent cannot be reversed by us. Circumstance (a) may also account for respondents false implication.
10B. So, the crucial question is, whether both circumstances (b) and (c) are credible. If they are then even assuming that circumstance (a) is not, the chain of circumstancial evidence, in our judgment, would be complete and the respondent could be convicted. If not, not.
11. Mr. Shirish Gupte, learned counsel for the Respondent, after cautioning us that we were seized of the matter in an appeal against acquittal, strenuously urged that the evidence of last seen deposed to by Geetram Kshirsagar does not inspire confidence. He candidly stated that his evidence showed that, he was not a truthful witness. Mr. Gupte cried hoarse that a perusal of the statement of Geetram kshirsagar shown that in it he has falsely implicated two accused persons-Jyoti Somanna Sangolkar and Hariba Somanna Sangolkar, the two real brothers of the respondent. He urged that, if he could be unscrupulous enough to falsely implicate them, what was the guarantee that he was not falsely implicating the respondent. Mr. Gupte based his submission on the edifice of the admission of Geetram Kshirsagar in his cross-examination, in paragraph 6, that, he had neither stated in his first police statement nor in his statement before the J.M.F.C., Jath (statement under Section 164, Cr.P.C.) that, Jyoti Sangolkar and Hariba Sangolkar were standing at the bandh. In order to do complete justice to the case, we perused his statements under Sections 161 and 164, Cr.P.C. and we found that in them, there was no mention of the names of Jyoti Sangolkar and Hariba Sangolkar. In such a factual matrix, we cannot lightly brush aside the submission of Mr. Gupte.
12. Mr. S. R. Borulkar, learned Additional Public Prosecutor, strenuously urged that the principle ‘false uno falsus omnibus’, as has been repeatedly observed by the Apex Court, is not applicable to our country. He urged that the Court should make every effort to separate the grain from the chaff of the evidence of a witness and it is only when the two are so inextricably mixed that, they are incapable of separation, would be whole statement of a witness be rejected. Mr. Borulkar’s contention is that, inasmuch as, in the statement of Geetram Kshirsagar recorded under Section 161, Cr.P.C., in investigation pursuance to the missing report of the deceased persons, there is a mention of the name of the Respondent the false implication of Jyoti Sangolkar and Hariba Sangolkar by the said witness was chaff. The grain he contends, was the presence of the respondent. We regret that the issue cannot be resolved in the simple manner in which Mr. Borulkar wants us to resolve it.
12A. The basic issue in appreciation of evidence is, whether a witness is truthful or not in respect of an integral part of the prosecution case and once a Court comes to the conclusion that a witness is not truthful in relation to the involvement of two co-accused persons, who are none else but the brother of the third accused, in respect of who, the prosecution wants the Court to believe the witness, it becomes impossible to accede to the request of the prosecution and accept the residual part of the evidence of that witness.
12B. There is no rule of thumb, having universal application to all situations that, if a witness is interrogated promptly, under Section 161, Cr.P.C., he is a truthful witness. It may be that, in the first place, i.e. statement under Sec. 161. Cr.P.C., Geetram Kshirsagar falsely implicated the Respondent and in the subsequent phase i.e. in his statement in the trial Court, falsely implicated Jyoti Sangolkar and Hariba Sangolkar, the two own brothers of the respondent.
12C. We wish to emphasize that the principle falsus uno falsus omnibus does not come to the rescue of a witness if the major part of his testimony is found to be false and only a small part may be true. It may come to his rescue in the converse situation.
In the instant case since it is crystal clear that Geetram Kshirsagar has falsely implicated the acquitted accused Jyoti Sangolkar and Hariba Sangolkar, we cannot accept his evidence visa vis the respondent. We are reinforced in our view by the observations made by the Apex Court in paragraph 8 of its oft-quoted judgment Balaka Singh v. State of Punjab which read thus :
‘…… If all the witnesses could in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh and Jarnail Singh may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the witnesses as also Banta Singh bore against the appellants ……’
13. For the said reasons, in our view, no reliance can be placed on the circumstance of last seen.
14. If the circumstance of last seen is excluded, then only that of motive and recoveries remain. The said circumstances in our judgment do not unerringly point out to the inference of the guilt of the respondent. Motive may be equally compatible with inference of his false implication. They may create a very strong suspicion against the respondent or show that the prosecution case against him may be true. But no Court ever convicts either on strong suspicions or on the hypothesis that the prosecution case may be true. We are fortified in our view by the observations of Gajendragadkar J., as he then was, in Sarwan Singh Rattan Singh v. State of Punjab. In paragraphs 9 and 12 of the said decision His Lordship observed as under :
“. . . . . suspicions, however, strong, cannot take the place of proof ……..”
and;
“……. between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence …….”
We regret that in this case, the said distance has not been travelled; muchless, by “legal, reliable and unimpeachable evidence”.
15. In view of the aforesaid discussion, the impugned judgment and order of acquittal cannot be stigmatized as either suffering from a grossly unreasonable appreciation of evidence or being vitiated by a manifest illegality resulting in failure of justice. In our judgment, the view of acquittal, vide the impugned judgment, was a plausible view and merits no interference.
16. In the result, this appeal is dismissed. The acquittal of the Respondent on various counts, recorded vide the impugned judgment, is confirmed. The Respondent is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged.
17. Appeal dismissed.