JUDGMENT
Vishnu Sahai, J.
1. The State of Maharashtra aggrieved by the Judgment and order dated 2-12-1981, passed by the Sessions Judge, Ratnagiri in Sessions Case No. 32/1981 acquitting the six respondents for offences punishable under sections 147, I.P.C. and 302 r/w. 149 I.P.C., has come up in appeal before us.
At the very outset, we may mention that respondent No. 2 Mohan Dattatraya Bhisale died during the pendency of this appeal and vide order dated 17-1-1994, passed by Division Bench of this Court, comprising of A.C. Agarwal and I.G. Shah, JJ., appeal against him was ordered to stand abated.
2. Briefly stated the prosecution case runs as under:—
The informant Suresh Vasant Kavathkar P.W. 6 and the two other eye witnesses Sushila Vasant Kavathkar P.W. 7 and Malini Vasant Kavathkar P.W. 8 and the deceased Chandrakant Vasant Kavathkar were residents of village Hadi situated within the limits of Malvan Police Station, District Malwan. The respondents are also said to be residents of the same village and are alleged to be residing at a distance of about one mile from the house of Suresh and others.
It is alleged that relations between the deceased and others on the one side and the respondents on the other, were highly strained. The starting point was the year 1977, when the informant Suresh Kavathkar had purchased a piece of land for construction of a hotel. That land was adjacent to the land of respondent No. 1 Ghanashyam Dattatraya Bhisale.
On 10-3-1981, the informant returned from Malvan at about 7.45 p.m. After returning from there, he went home where he saw his brother Chandrakant (deceased) his mother Sushila and sister Malini. Thereafter, he went to the house of Datta Patkar in order to inquire whether Vishnu Dandkar had returned from Bombay. This was presumably because the informant’s father was in Bombay and was ailing there. The informant inquired from Vishnu Dandkar about his father’s health but the latter told him that he could not meet him. Hence, he started returning for his house. At that time, he met his brother Chandrakant near the cattle-shed of Shedage. In the compound of one Mohan Tondavalkar, the informant saw the respondents standing with sticks in their hands. Chandrakant was about 10 feet behind him. Immediately thereafter, informant heard cries of his brother that he should run to his rescue as he was being assaulted. Thereupon, respondent No. 1 Ghanashyam and respondent No. 5 Rajaram rushed at the informant. Hence, he went away running from the spot. While running, he was shouting and calling his mother and sister. Hearing his cries, his mother Sushila and his sister Malini came to the spot, where Chandrakant was being assaulted. They also saw him being assaulted by the six respondents. After assaulting Chandrakant, the respondents are said to have run away. Thereafter, Sushila and Malini gave water to Chandrakant. Sushila asked him as to how it has happened and on that he told her that the six respondents had assaulted him. In the meantime, the informant Suresh went to inform the Police Patil Jagannath Gaonkar P.W. 9. He informed him that the six respondents had assaulted Chandrakant. Thereafter, both of them went to post office at Ozar in order to inform the police. Jagannath Gaonkar telephonically informed the police about the assault on Chandrakant. At about 10.15 p..m. the informant returned to the place of the incident. At that time, his brother Chandrakant was alive. However on account of inability to get transport, he could not take Chandrakant for medical aid. Sometime before midnight, Chandrakant succumbed to his injuries. It is alleged that throughout the night, the dead body remained on the place of the incident.
3. The F.I.R. of the incident was lodged the next morning (the morning of 11-3-1981) at Police Station Malvan by Suresh Kavathkar P.W. 6. In the same, the six respondents are named. The F.I.R. is Exhibit 33.
On the basis of the F.I.R., P.S.I. Mahendra Gopinath Bhokare, P.W. 10, of Police Station Malvan, registered a case against the respondents.
4. The investigation of the case was conducted by P.S.I. Mahendra Bhokare. At about 10 a.m. on 11-3-1981, he left for the place of incident. He found that Chandrakant was dead. Vide Exhibit 12, he performed the inquest on the dead body. Thereafter, he prepared a panchanama of the scene of the incident. It is Exhibit 13. He recovered from the place of the incident, one stick, blood-stained earth and one stone. Thereafter, he recorded statements of Sushila, Malini and some other witnesses. Thereafter, he arrested the respondent Nos. 3, 4 & 6. On 17-3-1981, at the instance of respondent No. 2, Mohan Dattatraya Bhisale, and respondent No. 3 Subhas Shantaram Bhisale, he recovered the weapon of assault namely two sticks. On 19-4-1981, he sent the recovered articles to the Chemical Analyst. Finally, after completing the investigation on 11-6-1981, he submitted the charge-sheet.
5. Going backwards, the autopsy on the dead body of Chandrakant was conducted on 11-3-1981 between 6 to 7 p.m. by Dr. Anil Kolvankar P.W. 4. Dr. Kolvankar found the following ante-mortem injuries on the person of the deceased-
1. Contusion 4 in No. transversely placed over sternum 4 ” x 1/2 ” each.
2. Contused lacerated wound on chin 2 in No. 2 ” x 1/2 x M.D. each
3. Fracture mandible
4. Contused lacerated wound vertex
(i) 3″ x 1/2″ x B.D.
(ii) 11/2″ x 1/2″ x B.D.
5. Contusion left shoulder superiorly 1″ x 1/4″.
6. Contusion chest left side mid auxillary line, 4 in number about 4″ x 1/2″ each.
7. Multiple contusion left infrascapular region upper two 4″ x 1/2″ two 31/2″ x 1/2″ (lower)
8. Contused lacerated wound left mastoid region 2″ x 1/2 x B.D.
9. M.M.A. both knees
10. Contusion thighs laterally.
On internal examination, Dr. Kolvankar noticed the following internal damage:-
“Head:—Contusion under scalp over vertex region.
Skull:—Fracture of the skull over vertex.
Brain:—Sub-dural haematoma was present.
He also found fracture of 3rd, 4th and 5th ribs beneath the right side of chest.
In the opinion of Dr. Kolvankar, the deceased died on account of multiple injuries. In his opinion, injury No. 4 was sufficient in the ordinary course of nature to cause death and the deceased must have succumbed to his injuries within about half an hour after receiving them.
In his cross-examination, Dr. Kolvankar stated that all the fractures on the skull and ribs were of a serious nature and the deceased must have lost his consciousness as soon as he received the blows. He further stated that a person who has received such serious injuries, is unlikely to regain consciousness without medical aid and that a man with fracture of mandible is not likely to speak coherently. Finally, in his cross-examination he stated that there must have been profuse bleeding on account of the injuries.
6. The case was committed to the Court of Sessions in the usual manner, where charges under section 147 and 302/149 I.P.C. were framed against the respondents to which they pleaded not guilty and claimed to be tried.
In the trial Court, apart from tendering some documentary evidence, the prosecution examined as many as ten witnesses. Out of them three namely Suresh Vasant Kavathkar, Sushila Vasant Kavathkar and Malini Vasant Kavathkar, P.Ws. 6, 7 & 8 respectively were examined, as eye witnesses.
In defence, no witness was examined.
7. The learned trial Judge after a careful consideration of the evidence adduced by the prosecution, and hearing the learned Counsel for the parties, vide impugned judgment acquitted the respondents.
Hence, this appeal.
8. We have heard Mrs. Poornima Kantharia, Additional Public Prosecutor for the State of Maharashtra at a considerable length. We are constrained to observe that inspite of the fact that this appeal pertains to the year 1982, learned Counsel for the respondents did not choose to remain present in the Court. Since the appeal is pending in this Court, over the last 14 years, and after perusing the material on record, we left that there was no substance in this appeal, we did not adjourn the same.
Mrs. Kantharia vehemently urged that the trial Court faulted in not relying upon the evidence of the prosecution. She further urged that the testimony of the three eye-witnesses of the incident namely Suresh, Sushila and Malini inspires implicit confidence and the rejection of it, by the trial Court is palpably unreasonable and hence the impugned order of acquittal is not sustainable and warrants to be reversed. We have carefully considered the aforesaid submission of Mrs. Kantharia and have ourselves gone through the entire evidence. We however, regret that we cannot persuade ourselves to agree with her.
9. In the first place, we would like to point out that we are dealing with an appeal against acquittal. The Apex Court in a large number of decisions, out of which we only propose to refer to those Khedu Mohton & others…appellants v. State of Bihar and others respondent, (see para 3) and , Tota Singh and another v. State of Punjab, (see para 6), has laid down the angle of approach in an appeal against acquittal. In both the decisions, Their Lordships have observed that where two views are possible on an appraisal of evidence adduced in a case, and the Court below has taken the view of acquittal the Appellate Court cannot legally interfere with the order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of evidence is erroneous and left to itself, it would have taken a different view of the evidence on record. It is keeping in mind this angle of approach that we have to examine whether the impugned order of acquittal can be interfered with. Our answer as said earlier is no.
10. In the instant case, the trial Judge has given very cogent reasons for passing the impugned order of acquittal.
He has firstly mentioned that the evidence on record is that the respondents reside at a distance of about one mile from the place where the deceased resided and since, presence of the deceased on the place of the incident was accidental, there was no question of the respondents waiting in ambush in a planned manner to commit his murder. This reason recently appears to us to plausible. Secondly, the trial Court has observed that the complainant Suresh Kavathkar, P.W. 6, in paragraph 13 of his cross-examination has stated “There was no proximate cause for these accused to assault Chandrakant on that night and there was no quarrel between them in the near past,” and in view of the aforesaid statement, there was no occasion for the respondents to have assaulted the deceased.
11. The trial Judge has also given cogent reasons for rejecting the ocular account and the oral dying declaration. He has dealt at some length with the evidence of the three eye-witnesses namely Suresh P.W. 6, Sushila P.W. 7 and Malini P.W. 8.
He has not accepted the claim of Sushila that she recognised the respondents while they were assaulting the deceased in view of her statement recorded under section 161 Cr.P.C. wherein she stated that on account of darkness, she could not identify the assailants. It is true that when she was confronted with the aforesaid admission, in her 161 statement, she denied having made it. However, we are not inclined to believe her for had she not actually so stated there was no question of P.S.I. Bhokare incorporating it in her statement recorded under section 161 Cr.P.C. We feel that this alone was sufficient for rejecting her testimony.
Coming to the statement of Malini P.W. 8 we find that it suffers from a similar vice. Though in the trial Court, she stated that she saw all the respondents assaulting the deceased but, in her statement under section 161 Cr.P.C. she had mentioned that five to six persons were assaulting Chandrakant in darkness. In the aforesaid statement, she also stated that she saw Ghanashyam, Mohan and Subhas only and not the remaining respondents. When she was confronted with the aforesaid dichotomy, between her statement in the trial Court on one hand and her 161 statement on the other hand, she gave the stock answer that I have no so said. This certainly, we are not prepared to accept. This improvement destroys the meat of her credibility. In our view, the trial Judge was wholly justified in rejecting her testimony.
There is another cogent ground for rejecting the evidence of Sushila and Malini, namely that it appears that their house was situate at some distance from the place of the incident and they could not have reached in time to witness the actual assault on the decease, a thing which they profess to have seen. The prosecution case is that as a consequence of the assault, launched by the respondents, Chandrakant started crying thereby attracting attention of his brother Suresh P.W. 6 who, in turn raised cries, hearing which the aforesaid two witnesses came. We find it extremely difficult to believe that both Sushila and Malini could have reached in time to see the actual assault on the deceased. After all, it should be remembered that the six respondents were assaulting the deceased with sticks and the Autopsy surgeon, as mentioned earlier, found only nine ante-mortem injuries on the person of the deceased. Common sense says that hardly a minute or two, would have been spent in causing them, and the aforesaid witnesses could not have reached in time to witness the actual assault on the deceased.
12. Again, we find that the trial Judge has given very cogent reasons for rejecting testimony of informant Suresh P.W. 6. The trial Judge has been impressed by the fact and rightly in our view that the conduct of Suresh was extremely unnatural. Firstly, the trial Judge felt that since there was acute enmity between the respondents on one side and informant and the deceased on the other side, Suresh who was about 10 feet ahead of Chandrakant, having seen the respondents in ambush would have warned Chandrakant. In our view, this reasoning of the trial Judge is absolutely correct. Secondly, the trial Judge felt that conduct of Suresh in running straight to the Police Patil and in not immediately returning after the assault was over to see the condition of his brother was unnatural. Again, we are not in agreement with the trial Judge. Thirdly, the trial Judge felt that claim of Suresh that he informed the Police Patil the names of the six respondents does not appear to be tenable. The trial Judge held this, in view of the fact that Suresh informed the Police Patil who in turn telephoned the Police Station Malvan but, Police Head Constable Krishna Rane P.W. 3, who noted the telephone message has not mentioned the names of the respondents, in the message he noted. The trial Judge felt and rightly in our view, that this throws a cloud of doubt on the claim of Suresh that he gave the Police Patil the names of the respondents after the incident. We are also not inclined to believe Suresh when he states that he informed the Police Patil Jagannath Gaonkar, P.W. 9, because the latter in paragraph 2 of his cross-examination, admitted that he possessed a printed Khabri book and he had not recorded the names of the respondents in it.
13. In view of the aforesaid infirmities, the trial Judge has rejected the evidence of three eye witnesses. Rightly, the trial Judge had borne in his mind that all these witnesses were highly interested witnesses and hence, extreme caution was required in evaluating their testimony. We have not the least hesitation in observing that applying the caution test, the only proper course should have been rejection of the evidence of these eye witnesses by the trial Judge and this is precisely what he has done.
14. The trial Court also rejected the evidence of the oral dying declaration for good reasons. The trial Judge felt that Suresh who had reached the place of incident at about 10.15 p.m. did not depose about the oral dying declaration and though his mother and sister, namely Sushila and Malini, did depose about it but their claim appears to be extremely suspect in view of the medical evidence. In the earlier part of our judgment, we have referred to the cross-examination of Dr. Kolvankar who performed the autopsy on the deceased. To recaptitulate, Dr. Kolvankar had stated that immediately after sustaining the injuries, the deceased must have lost his consciousness and was unlikely to regain the same without any medical aid. He had also stated that on account of fracture of mandible, he could not speak coherently. In the light of this medical evidence, the trial Judge concluded that it was extremely improbable for Chandrakant to have made the aforesaid oral dying declaration for admittedly, no medical aid had been given to him. In view of this medical evidence, the trial Judge was wholly justified in rejecting the oral dying declaration.
15. At this stage, we would like to point out that the weightage to be attached to the evidence of a oral dying declaration is wholly corelated to the credibility of the witnesses who depose about it. If the credibility of the witnesses, who depose about the oral dying declaration stands eroded, as is the case here, it ipso facto follows that the evidence in respect of the oral dying declaration cannot and should not be accepted. If, on the converse, the evidence of witnesses who depose about it, is found to be credible, the oral dying declaration should be accepted.
16. We may also mention that the trial Judge was wholly justified in rejecting the evidence of recovery of sticks at the pointing out of respondents Mohan Dattatraya Bhisale and Subhas Shantaram Bhisale on the ground that since the Chemical Analyser found no blood on them, they cannot be said to constitute incriminating evidence against the said respondents. Again, we feel that the trial Judge was right in this connection. It would also be apposite to refer to the statement of Govind Gavade, P.W. 1, witness of the recovery of sticks, who in his cross-examination stated that such sticks which are now before the Court are generally found in the houses of agriculturists.
17. Another reason which weighed with the trial Judge for throwing out the prosecution case was the proved alibi of respondent Rajaram Gangaram Bhisale to whom Suresh P.W. 6, the informant, has given specific part of rushing towards him. The alibi of this respondent was that at the time of this incident, he was on way to Bombay. In support of his alibi, a large number of defence witnesses have been examined. The trial Judge has considered this plea of alibi in paragraph 28 of the judgment and rightly in our opinion has found it to be acceptable. Acceptance of plea of alibi of Rajaram Bhisale means that he was not present on the place of the incident. It further means that in-as-much as all the three eye witnesses are deposing about his presence, they are speaking falsely and their credibility is eroded.
18. When the aforesaid infirmities are borne in mind, we cannot refrain from agreeing with the view of acquittal of the respondents taken by the trial Judge. Not only in our judgment was it a possible view, but it was a wholly correct view. A contrary view in our judgment would have been grossly unreasonable.
Pursuant to the above discussion, we are squarely satisfied that the prosecution had failed to bring home the charges against the respondents and the trial Judge was every inch correct in acquitting them. This appeal is dismissed. The acquittal of the respondents is confirmed. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
Before parting with this judgment, we would be failing in our duty, if we do not mention that Mrs. Poornima Kantharia, Additional Public Prosecutor for the State of Maharashtra with a rare combination of tenacity and fairness, has argued this appeal. Her assistance has considerably facilitated this judgment.
