{"id":17718,"date":"2008-04-10T00:00:00","date_gmt":"2008-04-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahesh-so-janardhan-gonnade-vs-state-of-maharashtra-on-10-april-2008"},"modified":"2016-08-30T07:15:12","modified_gmt":"2016-08-30T01:45:12","slug":"mahesh-so-janardhan-gonnade-vs-state-of-maharashtra-on-10-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahesh-so-janardhan-gonnade-vs-state-of-maharashtra-on-10-april-2008","title":{"rendered":"Mahesh S\/O Janardhan Gonnade vs State Of Maharashtra on 10 April, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahesh S\/O Janardhan Gonnade vs State Of Maharashtra on 10 April, 2008<\/div>\n
Author: L S Panta<\/div>\n
Bench: P. P. Naolekar, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (crl.)  545 of 2007\n\nPETITIONER:\nMahesh s\/o Janardhan Gonnade\n\nRESPONDENT:\nState of Maharashtra\n\nDATE OF JUDGMENT: 10\/04\/2008\n\nBENCH:\nP. P. Naolekar & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nREPORTABLE<\/p>\n
CRIMINAL APPEAL NO. 545 OF 2007<\/p>\n
Lokeshwar Singh Panta, J.\n<\/p>\n
1.\tThe appellant has filed this appeal under Section 379 of
\nthe Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.”) read
\nwith Section 2(A) of the Supreme Court (Enlargement of
\nCriminal Appellate Jurisdiction) Act, 1970 read with Order 21
\nRules XII to XXIX of the Supreme Court Rules, 1966, against
\nthe judgment and order dated 09.03.2007 passed by the
\nDivision Bench of the High Court of Judicature at Bombay,
\nNagpur Bench, Nagpur.  By the judgment under challenge, the
\nHigh Court has partly set aside the judgment dated
\n25.01.1990 of the learned Additional Sessions Judge,
\nBhandara, passed in Sessions Trial No.44\/88 convicting the
\nappellant under Section 302 of the Indian Penal Code [for
\nshort ‘IPC’] and sentencing him to imprisonment for life and to
\npay a fine of Rs.1,000\/- with default clause to suffer further
\nsix months’ R.I.  The appellant, however, has been acquitted
\nfor the offences punishable under Sections 307 and 324 of the
\nIPC and Sections 25 and 27 of the Arms Act.\n<\/p>\n
2.\tBrief facts, which led to the trial of the accused, are as
\nfollows:-\n<\/p>\n
\tThe appellant-Mahesh and one Sunita were residents of
\nBastarwari Ward, Paoni, Tehsil Paoni, District Bhandara.  It
\nwas alleged that they developed love-affair with each other
\nwhen they were studying in the school.  The prosecution case
\nwas that the marriage of Sunita was arranged with Sanjay, a
\nresident of Nagpur.  Before the marriage of Sunita could take
\nplace with Sanjay, the appellant had gone to the house of
\nSanjay and disclosed the fact of his past love-affair with
\nSunita.  He also threatened Sanjay to face with dire
\nconsequences if he would marry with Sunita.  Sanjay in the
\npresence of his brother Manik (PW-7) told the appellant that
\nas the “Sakshagandha” Ceremony had already taken place, he
\nwas left with no other option except to marry with Sunita.  It
\nwas on 12.02.1988 when the marriage between Sunita and
\nSanjay took place at Nagpur.  On 27.03.1988, Sanjay and his
\nwife Sunita both had gone to the house of Nirmalabai for
\ninviting the latter to attend the marriage of the niece of Sanjay
\nscheduled to take place at Nagpur.  They had stayed for a
\nnight at the house of Nirmalabai.  On the next day, i.e.
\n28.03.1988, Nirmalabai, Sanjay (PW-8), his wife Sunita,
\nArchana (PW-4) – niece of Sunita and Rupesh (PW-16), son of
\nthe maternal uncle of Sunita, had gone towards the bridge
\nside of Wainganga River for evening walk.  It was alleged that
\naround 5.00 or 5.30 in the evening, the appellant along with
\nhis friend Rajesh (PW-5) was seen by the above-said persons
\ngoing on a motorcycle to Wainganga River bridge side.  The
\nappellant on seeing Sanjay, his wife Sunita, Nirmalabai, PWs-
\nArchana and Rupesh at the site of the river, allegedly uttered
\n“Sali Sunita Yevdha Prem Asun Aaj Ekda Sudha Mazyakade
\nPahile Nahi” to PW-Rajesh.  The prosecution alleged that on
\nthe same day, the appellant had kept a gun and one bag at the
\nhouse of Laxmibai (PW-2) in the presence of Bilkish Begum
\n(PW-3), a neighbour of PW-2 on the pretext that he would
\ncollect these articles in the evening for hunting purpose.  The
\nappellant and PW-Rajesh returned to their respective houses
\nin the evening.  After some time, the appellant armed with a
\ngun and knife came back to the place of incident and fire shot
\nin the back of Sanjay, who, as a result of bleeding injury,
\nuttered ‘Are Bapre’ and then laid on the road side.  Sunita and
\nNirmalabai both tried to extend help to injured Sanjay, but the
\nappellant came near them, pulled Sunita’s hair and stabbed
\nher on vital parts of head, neck and back.  Sunita collapsed on
\nreceipt of severe injuries. Nirmalabai tried to save her
\ndaughter Sunita, but the appellant struck knife blows to
\nNirmalabai also.  The appellant, on seeing the gathering of
\npeople at the scene of occurrence, ran away leaving all the
\nthree injured persons on the spot.\n<\/p>\n
3.\t  Prakash (PW-1), a private Medical Practitioner, who
\nlived nearby the place of occurrence, on hearing shouting of
\nthe people, went to the spot.  He spotted Sunita lying with
\nbleeding injuries on the road side.  He also spotted Nirmalabai
\nand one man lying in injured condition at a little distance
\naway from Sunita. PW-Prakash lifted Sanjay, Sunita and
\nNirmalabai into a rickshaw and took them to the Government
\nHospital, Paoni, where they were admitted by Dr. Laxman (PW-\n<\/p>\n
10), Medical Officer.  Sunita could not survive and succumbed
\nto the injuries in the evening around 7.15 p.m.  Dr. Laxman
\nsent a memo to the Police Station, Paoni, regarding admission
\nof the injured persons.  PW-Sanjay and Nirmalabai were
\ntransferred to Medical College, Nagpur, at about 7.45 p.m. for
\nproper medical treatment.\n<\/p>\n
4.\tPW-Prakash at about 7.30 p.m. lodged a written
\ncomplaint (Ext. 28) at Paoni Police Station, on the basis of
\nwhich First Information Report bearing Crime No.34\/1988
\n(Ext. 29) was registered by PSI Dhimole (PW-18) under
\nSections 302 and 307 of the IPC.  PW-Dhimole started
\ninvestigation.  He tried to get the dying declaration of Sunita
\nand statements of injured Sanjay and Nirmalabai recorded,
\nbut at the relevant time he could not get the services of any
\nExecutive Magistrate readily available for the purpose.  The
\nInvestigating Officer conducted inquest on the dead body of
\nSunita.  He arrested the appellant on the same day at about
\n7.30 p.m.  The appellant allegedly made a disclosure
\nstatement to the Investigating Officer expressing his
\nwillingness to point out the place where a gun and one knife
\nwere concealed by him.  The appellant took the Police and
\nthe Panch witnesses, namely, Vithoba Khobragade (PW-9), a
\nLegal Practitioner, and Harihar Barsagade (PW-13) to his
\nhouse and got the weapons of offence recovered therefrom.
\nThe articles were seized by the Investigating Officer vide
\nPanchnama (Ext. 43).\n<\/p>\n
5. \tDr. Laxman conducted the post mortem examination on
\nthe dead body of the deceased Sunita and recorded the
\nfollowing injuries in Post Mortem Report (Ext. 62):-\n<\/p>\n
1)\tIncised wound 3 cm x 1 cm over left forehead.\n<\/p>\n
2)\tIncised wound 3 cm x 1 cm inter-scapular
\nregion to right side.\n<\/p>\n
3)\tIncised wound\/stab 1 cm x = cm over posterior
\nside of neck in midline area.\n<\/p>\n
4)\tIncised wound 3 cm over Metacarpopharynegeal
\njoint of right hand.\n<\/p>\n
5)\tIncised wound 2 cm 1 cm over middle finger of
\nright hand.\n<\/p>\n
6)\tIncised wound 1 cm x 1 cm
\nMetacarpopharynegeal joint of right middle finger.\n<\/p>\n
7)\tIncised wound over scalp 3 cm x 1cm behind
\nright ear.\n<\/p>\n
8)\tIncised wound 3 cm x 1 cm over occipital region
\nof skull.\n<\/p>\n
9)\tIncised wound 5 cm x 1 cm over mid parietal
\nregion.\n<\/p>\n
Her autopsy vide Exhibit 62 shows following
\ninternal injuries on her person:-\n<\/p>\n
1)\tPleura-perforating injury 1 cm x 1
\ncm upto apex of left lung.\n<\/p>\n
2)\tLeft lung: 2 cm x = cm injury to the
\napex of left lung plenty blood collection was
\nseen in left thoracic cavity.\n<\/p>\n
According to the opinion of the doctor, the cause of death of
\nSunita was due to shock due to hemorrhage.\n<\/p>\n
6.\tDr. Laxman examined PW-Sanjay and found the
\nfollowing injuries on his person:-\n<\/p>\n
1)\tIncised wound\/stab over abdomen 3 cm x 4
\ncm in left Hypochondrium.\n<\/p>\n
2)\tFire arm injuries 9 in number on left size back
\nat renal angle level to upper iliac crest.\n<\/p>\n
3)\tFirearm injuries over buttocks.  Two injuries
\nwere on right buttock and one injury was on left
\nbuttock and size of each injury was 1 cm x 1 cm
\nedges of all the said injuries were inverted.
\nBlack right all around the injuries would of exit
\nseen.\n<\/p>\n
7. \tOn examination of Nirmalabai, Dr. Laxman noticed the
\nfollowing injuries on her person:-\n<\/p>\n
a.\tIncised wound\/stab over left scapular
\nregion 2.5 cm x 1cm bleeding was present.\n<\/p>\n
b.\tIncised wound 7 cm x 1 cm over face
\nright side lateral to lateral angle of eye.\n<\/p>\n
c.\tIncised wound 2.5 cm x 1 cm over right
\nhand above little finger.\n<\/p>\n
d.\tIncised wound over right elbow joint 2.5
\ncm x 1 cm Movements frees.\n<\/p>\n
8.\tThe Investigating Officer collected the post mortem report
\n(Ext. 62) of Sunita, her Injury Certificate (Ext. 54), Injury
\nCertificate of PW-Sanjay (Ext. 55) and Injury Certificate of PW-
\nNirmalabai (Ext. 56) respectively.  At the Medical College
\nHospital at Nagpur, some pellets of gun fire were taken out of
\nthe body of PW-Sanjay.  The Investigating Officer collected
\nsamples of nails of the appellant in the presence of Panch
\nwitnesses and the same were sent to the Chemical Analyser.\n<\/p>\n
9.\t  After completion of the investigation and after receipt of
\nthe post mortem report and the Injury Certificates of deceased
\nSunita, PW-Sanjay and Nirmalabai and also the Chemical
\nAnalyser’s Reports (Ext. 99, Ext. 100 and Ext. 102) and Report
\nof Ballistic Expert (Ext. 101).  PW-Dhimole submitted charge
\nsheet against the appellant in the Court of Chief Judicial
\nMagistrate, Bhandara.  The Chief Judicial Magistrate
\ncommitted the trial of the appellant to the Court of Sessions,
\nBhandara, as the offences framed in the charge sheet were
\nexclusively triable by the Court of Sessions.\n<\/p>\n
10.\tThe trial of the appellant was conducted by the learned
\nAdditional Sessions Judge, who framed charges against the
\nappellant for the offences under Sections 302, 307 and 324 of
\nthe IPC and for the offences under Sections 25 and 27 of the
\nArms Act.\n<\/p>\n
11.\tThe prosecution examined as many as 18 witnesses in
\nsupport of its case.  In the statement under Section 313 of
\nCr.P.C., the appellant has denied his involvement in the crime.
\nHe pleaded that the prosecution witnesses are inimical
\ntowards him.  He admitted that on the day of incident at about
\n5.00 to 5.30 p.m., he along with PW-Rajesh had gone on a
\nmotorcycle towards river side for evening walk and thereafter
\nthey went to a small hillock in the vicinity and stayed there for
\nabout 1 = hours.  They kept motorcycle near one Hotel, where
\nthey had taken tea and when they were walking on a small
\nhill, they heard sound of blasting of cracker and thereafter
\nthey returned to their respective houses.  The appellant also
\nstated that when he came to his house, some people told that
\nmurder had taken place.  The defence of the appellant was
\nthat he was arrested on suspicion by the Police on account of
\nold quarrel with the grandfather of deceased Sunita and he
\npleaded innocence.\n<\/p>\n
12.\t  The learned Additional Sessions Judge has disbelieved
\nthe testimony of the injured witnesses inter alia on the
\ngrounds: (a) they are close relatives and also interested
\nwitnesses besides they being untrustworthy because their
\nevidence did not find corroboration from any independent
\nwitnesses though many people were present at the scene of
\noccurrence, yet none of them was examined by the
\nprosecution, (b) some of the important witnesses have turned
\nhostile to the prosecution and (c) the recovery of weapons of
\noffence has not been supported by the panch witnesses and,
\ntherefore, recorded the judgment of acquittal of the appellant.
\nBeing aggrieved, the State of Maharashtra preferred Criminal
\nAppeal No.198\/90 in the High Court of Judicature at Bombay,
\nNagpur Bench.  The Division Bench of the High Court
\nscrutinized and reappraised the entire oral and documentary
\nevidence on record and has come to the conclusion that the
\nlearned Trial Judge has not properly appreciated the evidence
\non record and therefore, the judgment was set aside and as a
\nresult thereof, the appellant has been held guilty for the
\noffence of murder of Sunita.  The record shows that during the
\npendency of the trial, Nirmalabai had died and, therefore, she
\ncould not be examined as a witness and injuries sustained by
\nher though sought to be proved through PW-Dr. Laxman, yet
\nthe High Court has noticed that there was no evidence on
\nrecord to prove the period of hospitalization of Nirmalabai and
\nthe nature of medical treatment given to her by the doctor of
\nMedical College at Nagpur.   In the circumstances, the
\nappellant has been acquitted of the charge under Section 324
\nof IPC for causing injuries to Nirmalabai.  As regards the
\ngunshot injuries caused to PW-Sanjay by the appellant, the
\nHigh Court has come to the conclusion that the prosecution
\nhas not established that pellets extracted out of the body of
\nPW-Sanjay were corresponding to the pellets allegedly fired by
\nthe appellant from the gun recovered from him by the
\nInvestigating Officer.  No Medical Officer from Medical College,
\nNagpur, who medically examined PW-Sanjay, has been
\nexamined by the prosecution to prove injuries received by
\nSanjay from fire arm.  In these circumstances, the High Court
\nhas given benefit of doubt to the appellant for an offence under
\nSection 307 of IPC and consequently, no offence under the
\nArms Act as well has been found against the appellant.  The
\nappellant has filed this appeal against his conviction and
\nsentence imposed upon him by the High Court for the murder
\nof Sunita.\n<\/p>\n
13.\t  We have heard learned counsel for the parties who have
\ntaken us through the oral evidence of the material witnesses
\nas well as the documentary evidence appearing on record.\n<\/p>\n
14.\t  Mr. Sushil Kumar, learned senior Advocate appearing
\nfor the appellant, first contended that the High Court
\ncommitted grave error in interfering with the order of acquittal
\npassed by the Trial court, only because another view could
\nhave been taken in the matter and the interference of the High
\nCourt in the context of reversal of acquittal is against the well-
\nestablished principles laid down by this Court in a series of
\ndecisions.   In support of this submission, reliance has been
\nplaced on the decisions of this Court in Tota Singh & Anr.  v.
\nState of Punjab [(1987) 2 SCC 529] and State of Rajasthan v.
\nRaja Ram<\/a> [(2003) 8 SCC 180].  We have gone through the
\nabove-said decisions.  It is not in dispute that this Court by a
\nseries of decisions has laid down the parameters of
\nappreciation of evidence on record and jurisdiction and
\nlimitations of the Appellate Court while dealing with appeal
\nagainst an order of acquittal.  In the case of Tota Singh v. State
\nof Punjab (supra), it was held as under:- (SCC p.532 para 6)
\n“6.  The jurisdiction of the appellate
\ncourt in dealing with an appeal against
\nan order of acquittal is circumscribed by
\nthe limitation that no interference is to be
\nmade with the order of acquittal unless
\nthe approach made by the lower court to
\nthe consideration of the evidence in the
\ncase is vitiated by some manifest illegality
\nor the conclusion recorded by the court
\nbelow is such which could not have been
\npossibly arrived at by any court acting
\nreasonably and judiciously and is,
\ntherefore, liable to be characterised as
\nperverse.  Where two views are possible
\non an appraisal of the evidence adduced
\nin the case and the court below has taken
\na view which is a plausible one, the
\nappellate court cannot legally interfere
\nwith an order of acquittal even if it is of
\nthe opinion that the view taken by the
\ncourt below on its consideration of the
\nevidence is erroneous.”\n<\/p>\n
15.\t  In State of Rajasthan v. Raja Ram<\/a> (supra), this Court
\nheld that the golden thread which runs through the web of
\nadministration of justice in criminal cases is that if two views
\nare possible on the evidence adduced in the case, one pointing
\nto the guilt of the accused and the other to his innocence, the
\nview which is favourable to the accused should be adopted.
\nThe paramount consideration of the court is to ensure that
\nmiscarriage of justice is prevented.  A miscarriage of justice,
\nwhich may arise from acquittal of the guilty, is no less than
\nthe conviction of an innocent.  Further, it is held that in a case
\nwhere admissible evidence is ignored, a duty is cast upon the
\nAppellate Court to re-appreciate the evidence in a case where
\nthe accused has been acquitted, for the purpose of
\nascertaining as to whether any of the accused committed any
\noffence or not.  The principle to be followed by the Appellate
\nCourt considering the appeal against the judgment of acquittal
\nis to interfere only where there are compelling and substantial
\nreasons for doing so.  If the impugned judgment is clearly
\nunreasonable, it is a compelling reason for interference.  These
\naspects were again highlighted by this Court in Shivaji
\nSahabrao Bobade v. State of Maharashtra<\/a> [(1973) 2 SCC 793];
\nRamesh Babulal Doshi v. State of Gujarat<\/a> [(1996) 9 SCC 225]
\nand Jaswant Singh v. State of Haryana [(2000) 4 SCC 484] and
\nsame parameters were reiterated in the latest judgment of this
\nCourt in State of Goa v. Sanjay Thakran & Anr.<\/a> ((2007) 3 SCC\n<\/p>\n
755).\n<\/p>\n
16.\t  Though the above principles are well-established, a
\ndifferent note was struck in several decisions by this Court.  It
\nis, therefore, appropriate if we consider some more leading
\ndecisions on the point.\n<\/p>\n
17.\t  In Prandas v. State [AIR 1954 SC 36], the accused was
\nacquitted by the Trial court.  The Provincial Government
\npreferred an appeal which was allowed and the accused was
\nconvicted for offences punishable under Sections 302 and 323
\nIPC.  The High Court, for convicting the accused, placed
\nreliance on certain eye-witnesses.\n<\/p>\n
18.    Upholding the decision of the High Court and following
\nthe proposition of law in Sheo Swarup v. R. Emperor  (1933-\n<\/p>\n
34)61 IA 398 : AIR 1934 PC 227 (2), a six-Judge Bench
\nspeaking through Fazl Ali, J. unanimously stated: (Prandas
\ncase, AIR p. 38, para 6)
\n“6. It must be observed at the very outset
\nthat we cannot support the view which
\nhas been expressed in several cases that
\nthe High Court has no power under
\nSection 417, Criminal Procedure Code, to
\nreverse a judgment of acquittal, unless the
\njudgment is perverse or the subordinate
\ncourt has in some way or other
\nmisdirected itself so as to produce a
\nmiscarriage of justice.”\n<\/p>\n
                                 (emphasis supplied)<\/p>\n
19.\t  In Surajpal Singh v. State [AIR 1952 SC 52], a two-
\nJudge Bench observed that it was well-established that in an
\nappeal under Section 417 of the Cr.P.C. (old), the High Court
\nhad full power to review the evidence upon which the order of
\nacquittal was founded. But it was equally well-settled that the
\npresumption of innocence of the accused was further
\nreinforced by his acquittal by the trial court, and the findings
\nof the trial court which had the advantage of seeing the
\nwitnesses and hearing their evidence could be reversed only
\nfor very substantial and compelling reasons.\n<\/p>\n
20.\t  In Aher Raja Khima v. State of Saurashtra<\/a> [AIR 1956 SC
\n217], the accused was prosecuted under Sections 302 and 447
\nIPC. He was acquitted by the trial court but convicted by the
\nHigh Court. Dealing with the power of the High Court against
\nan order of acquittal, Bose, J. speaking for the majority (2:1)
\nstated: (AIR p. 220, para 1)
\n“It is, in our opinion, well settled that it is
\nnot enough for the High Court to take a
\ndifferent view of the evidence; there must
\nalso be substantial and compelling
\nreasons for holding that the trial court was
\nwrong.”             \t(emphasis supplied)<\/p>\n
21.\t  In Chandrappa v. State of Karnataka<\/a> (2007) 4 SCC 415],
\non consideration of a catena of earlier decisions of this Court
\nand Privy Council, the following general principles regarding
\npowers of the Appellate Court while dealing with an appeal
\nagainst an order of acquittal emerge:\n<\/p>\n
(1) An appellate court has full power to
\nreview, reappreciate and reconsider the
\nevidence upon which the order of
\nacquittal is founded.\n<\/p>\n
(2) The Code of Criminal Procedure, 1973
\nputs no limitation, restriction or
\ncondition on exercise of such power and
\nan appellate court on the evidence before
\nit may reach its own conclusion, both on
\nquestions of fact and of law.\n<\/p>\n
(3) Various expressions, such as,
\n“substantial and compelling reasons”,
\n“good and sufficient grounds”, “very
\nstrong circumstances”, “distorted
\nconclusions”, “glaring mistakes”, etc. are
\nnot intended to curtail extensive powers
\nof an appellate court in an appeal against
\nacquittal. Such phraseologies are more in
\nthe nature of “flourishes of language” to
\nemphasise the reluctance of an appellate
\ncourt to interfere with acquittal than to
\ncurtail the power of the court to review
\nthe evidence and to come to its own
\nconclusion.\n<\/p>\n
(4) An appellate court, however, must
\nbear in mind that in case of acquittal,
\nthere is double presumption in favour of
\nthe accused. Firstly, the presumption of
\ninnocence is available to him under the
\nfundamental principle of criminal
\njurisprudence that every person shall be
\npresumed to be innocent unless he is
\nproved guilty by a competent court of law.\n<\/p>\n
Secondly, the accused having secured his
\nacquittal, the presumption of his
\ninnocence is further reinforced,
\nreaffirmed and strengthened by the trial
\ncourt.\n<\/p>\n
(5) If two reasonable conclusions are
\npossible on the basis of the evidence on
\nrecord, the appellate court should not
\ndisturb the finding of acquittal recorded
\nby the trial court.\n<\/p>\n
22.      Again in a recent decision in Girja Prasad (Dead) by Lrs.
\nV. State of M. P. [(2007) 7 SCC 625], this Court held that in an
\nappeal against acquittal, it is for the Appellate Court to keep in
\nview the relevant principles of law, to re-appreciate and
\nreweigh the evidence as a whole and to come to its own
\nconclusion on such evidence in consonance with the principles
\nof criminal jurisprudence.  In the teeth of the well-established
\nprinciples discussed in the above-stated decisions, the
\nquestion whether the High Court in exercise of its appellate
\njurisdiction has exceeded its limitations in an appeal against
\nacquittal of the appellant by the Trial Judge, shall be dealt
\nwith in the later part of the judgment after recording all the
\nsubmissions urged on behalf of the appellant before us.\n<\/p>\n
23.\t  The learned senior counsel contended that the High
\nCourt has failed to appreciate the vital aspect of the matter
\nthat the trial court has recorded fact finding that the alleged
\neye-witnesses in the present case were interested witnesses as
\nthey are related to the deceased and their evidence was not
\nreliable unless the same was corroborated by independent
\nwitnesses who were not examined by the prosecution though
\navailable to it or who have turned hostile to the prosecution.\n<\/p>\n
24.\t  The learned counsel then contended that the High
\nCourt again committed grave error in relying on the evidence
\nof panch witnesses who have not supported the prosecution
\ncase in respect of recovery of weapons of offence allegedly used
\nin the commission of the crime, surprisingly the High Court
\nconvicted the appellant for offence under Section 302, while on
\nthe same set of evidence it has given benefit of doubt to the
\nappellant holding him not guilty of offences under Section 307
\nof IPC and Arms Act for causing gunshot injury to PW-Sanjay.
\nAccording to the learned counsel, the evidence of the eye-
\nwitnesses did not inspire confidence in the prosecution story
\nand reliance upon the same for convicting the appellant under
\nSection 302, IPC, was wholly unsustainable.  He next
\ncontended that the High Court also failed to appreciate that
\nstatements of witnesses recorded after considerable delay
\nwould point out towards a concerted attempt on the part of the
\nprosecution and the witnesses to falsely implicate the
\nappellant.  The High Court has failed to appreciate that the
\nreport of the Chemical Analyser did not conclusively prove the
\npresence of human blood-stains found on the clothes of the
\nappellant bearing blood group of the deceased Sunita.  The
\ntrial court on the basis of these material defects and loopholes
\nin the case of the prosecution has rightly drawn adverse
\ninference against the prosecution, but the High Court having
\nfailed to appreciate the material aspect of the matter, recorded
\ndifferent findings against the appellant which are wholly
\nperverse based on mis-appreciation of the evidence appearing
\non record.  The learned counsel, by taking us through the
\njudgment of the High Court, then contended that PW-Sanjay
\nhas not stated in his statement anything in regard to the stab
\ninjury caused to him by the appellant which is noticed by the
\nMedical Officer in his report.  The prosecution has also not
\nexamined the Medical Officer, who had taken out pellets or its
\nremains from the body of PW-Sanjay and, therefore, full truth
\nhas not come before the Court and genesis of occurrence has
\nbeen suppressed by the prosecution.  He also raised a
\ncontention that the High Court has failed to appreciate the
\nevidence of PW-Rajesh, who has supported the defence version
\nto a considerable extent pleaded by the appellant in the
\nstatement under Section 313 Cr.P.C.  According to the learned
\ncounsel, the time mentioned at 7.30 p.m. in First Information
\nReport was also repeated on the arrest memo of the appellant
\nas well as on the other material documents prepared by the
\nInvestigating Officer, would cast reasonable doubt that the
\ninvestigation was not conducted fairly and honestly.   He then
\nsubmitted that the learned Trial court was right in holding the
\nprosecution case doubtful as it has failed to explain the injury
\non the little finger of the hand of the appellant, but the High
\nCourt has held the appellant responsible for non-explanation
\nof blood injury on his finger, which finding is contrary to the
\nwell-settled principle of law.  The learned counsel then
\ncontended that the evidence of the alleged eye-witnesses is full
\nof contradictions, unexplained discrepancies and also the fact
\nthat the statements of PW-Sanjay and Nirmalabai, were not
\nrecorded immediately after they were taken to Paoni Hospital
\nand statements of PW-Archana and PW-Rupesh were recorded
\nafter about 3 or 4 days from the day of incident, in spite of
\ntheir availability for giving the statements to the Police.
\nAccording to the learned counsel, the statements of injured
\nPW-Sanjay and Nirmalabai (who died during trial) ought to
\nhave been recorded as dying declaration to unfold the true
\ngenesis of the occurrence and to prove beyond reasonable
\ndoubt that it was the appellant and none else who caused the
\ndeath of Sunita and injuries to PW-Sanjay and deceased
\nNirmalabai.   It is also contended by the learned counsel that
\nthe prosecution story was inherently improbable as the
\nappellant could not have held a gun in one hand and a knife
\nin another for inflicting injuries to the injured persons and
\ndeceased Sunita by using two different weapons at the same
\ntime.  Lastly, the learned counsel submitted that the judgment
\nof the learned Trial Judge was valid and legal based upon
\nproper appreciation of the evidence and reasonable
\nconsiderations of the entire material on record which has been
\nset aside by the High Court on unsustainable, untenable
\ngrounds and misreading and mis-appreciation of the entire
\nevidence appearing on record.\n<\/p>\n
25.\t In opposition, Dr. Rajiv Masodkar, learned counsel for
\nthe respondent-State, submitted that the evidence of injured
\nPW-Sanjay has been corroborated by PW-Archana, PW-
\nRupesh, who are the other eye-witnesses of the occurrence,
\nand also to some extent by PW-Prakash Deshkar, the
\ncomplainant.  He submitted that no doubt PW-2 Laxmibai,
\nPW-3 Bilkish Begum, PW-5 Rajesh and PW-15 Nilkanth have
\nresiled from their earlier statements made to the Police and
\nthe Special Judicial Magistrate, but their versions in the Court
\non material aspect of the matter find support to the
\nprosecution case and, therefore, their evidence to that extent
\nhas to be accepted in the circumstances of the case.  The
\nlearned counsel also relied upon the evidence of PW-Vithoba
\nKhobragade and PW-Harihar Barsagade, who had noticed
\nstains of blood on the wearing apparel of the appellant at the
\ntime of his arrest and disclosure statement made by him in
\ntheir presence, on the basis of which gun and knife used for
\nthe commission of offence were recovered coupled with the fact
\nthat blood-stained nails clippings are sufficient and consistent
\ncircumstances connecting the appellant in the commission of
\nthe crime.  The learned counsel then contended that the High
\nCourt has made proper and perspective re-appraisal of the
\nentire evidence on record and found the appellant guilty of the
\noffence of murder of Sunita and if the Investigating Officer was
\nnot prompt in recording the statements of the eye-witnesses,
\nhis slackness in no circumstances will prove the innocence of
\nthe appellant whose presence at the scene of occurrence
\narmed with weapons of offence has been fully established by
\nthe injured eye-witness and other material witnesses.  He
\nsubmitted that this Court shall not be obliged to interfere with
\nthe well-merited and well-reasoned judgment of the High
\nCourt which, in no circumstances, can be said as perverse or
\nillegal.\n<\/p>\n
26.\t  In the backdrop of the above-said contentions of the
\nlearned counsel for the parties and in the light of principles
\nlaid down in the above referred decisions of this Court and the
\nPrivy Council on the question of exercising powers in appeal
\nby the High Court against the order of acquittal and the well-
\nsettled principles laid down in a series of decisions of this
\nCourt on the point of appreciation of the evidence of the
\ninjured eye-witnesses and non-injured eye-witnesses, we shall
\nconsider the evidence placed on record to find out whether the
\nHigh Court has committed any error in dealing with the
\nevidence, which can be said to be patently illegal or that the
\nconclusion arrived at is wholly untenable, calling for
\ninterference by us.\n<\/p>\n
27.\t  The substance of occurrence of incident as alleged by
\nthe prosecution is not disputed and the only question would
\nbe whether the appellant is proved to be responsible for
\ncausing the injury to deceased Sunita, which later on proved
\nfatal to her.\n<\/p>\n
28.\t It is the categorical evidence of PW-Sanjay that on
\n28.03.1988 he along with his wife Sunita, mother-in-law
\nNirmalabai, PW-Archana and PW-Rupesh had gone towards
\nthe bridge of Wainganga River for evening walk.  At about 6.00
\np.m. when they started returning to the house of his mother-
\nin-law they noticed the appellant and his one friend going on a
\nmotorcycle towards bridge side.  As soon as they reached near
\nthe house of his mother-in-law, he heard sound of gun fire
\nfrom his back side which hit him in the back and at that time
\nhe saw the appellant approaching behind him armed with a
\ngun.  The appellant then kept gun at one side of the scene of
\nthe incident and he himself rushed towards them armed with
\nknife.  He attacked his wife Sunita with knife and stabbed
\nparts of her head, neck and back, etc. and in the process, the
\nappellant also assaulted his mother-in-law with the knife and
\non seeing the people gathering at the spot, the appellant fled
\naway from the scene of occurrence.  It is his evidence that one
\nday before the day of “Sakshagandha” ceremony, which took
\nplace on 13.12.1987, the appellant had come to his house at
\nNagpur and apprised him about his love-affair with Sunita and
\ndisclosed that on an earlier occasion as well he had broken the
\nproposal of marriage of Sunita with one boy. The appellant
\nwarned him that if he still would like to marry Sunita he
\nwould face dire consequences at the hands of the appellant.
\nThe series of suggestions of the defence that on the day of
\nincident the witness had not seen the appellant at the spot;
\nthe appellant had not carried the gun with him; the appellant
\nhad not rushed towards him, his wife Sunita and other
\npersons accompanying them armed with knife and that the
\nappellant had not stabbed deceased Sunita and Nirmalabai
\nwith knife, have categorically been denied by him.  This
\nwitness is not a stranger to the appellant and he has clearly
\nidentified the appellant as an assailant.  His evidence has not
\nbeen shattered or discredited by the defence in spite of
\nsearching cross-examination.  He is natural witness being an
\ninjured person and his evidence is cogent, satisfactory and
\nconsistent which has been properly re-appreciated and
\naccepted by the High Court holding the appellant an assailant
\nof the murder of Sunita.\n<\/p>\n
29.\t  PW-Archana has fully corroborated the testimony of
\nPW-Sanjay.  It is her evidence that on the day of occurrence,
\nSunita had requested her and PW-Rupesh to give company to
\nher, her husband Sanjay and mother Nirmalabai, who had
\ndecided to go to Wainganga river bridge side for evening walk.
\nThey left the house of Nirmalabai around 5.00 p.m.  At about
\n6.00 p.m. or 6.30 p.m. they started returning to the house of
\nNirmalabai from the place of their visit, when they saw the
\nappellant and Raju Deshkar (PW-5) going towards the bridge
\nside riding on a motorcycle.  It is her evidence that after
\ncrossing the gate of Fort and turning towards western side of
\nthe place of incident, they heard a sound of gunshot, which hit
\nPW-Sanjay on his back and Sanjay shouted “Are Bapre” and
\nas a result of gun fire injury, Sanjay laid down on the road.
\nSunita and Nirmalabai immediately rushed towards Sanjay
\nand embraced him.  This witness has identified the appellant
\nwho was following them at a distance of about 5 or 6 feet
\nholding a gun and one knife in his hands.  She deposed that
\nin her presence the appellant at first attempt pulled Sunita’s
\nhair and then inflicted knife blows on her head, neck and back
\nwithout any cause.  She and PW-Rupesh got frightened due to
\nthe sudden horrible incident, they rushed to the house of PW-
\nSadashiorao – grandfather of Sunita to narrate the incident
\nbut Sadashiorao, at the relevant time, was not present in the
\nhouse.  The grandmother of Sunita told them that her
\nhusband, at the relevant time, could be found in the nearby
\nhouse of Ganpati Nimje.  She along with PW-Rupesh went to
\nthe house of Ganpati Nimje and they accordingly narrated the
\nentire incident to PW-Sadashiorao, who in turn immediately
\nrushed to the scene of occurrence.  She stated that in the
\nevening at about 7.30 p.m., she came to know that Sunita had
\ndied.  The learned counsel for the appellant has challenged the
\ntestimony of this witness on the ground that she and PW-
\nRupesh, being close relatives of Sunita, had not cared to take
\nthe injured to the Hospital nor they made any attempt to go to
\nthe Police Station for reporting the matter and, therefore, in
\nsuch circumstances the presence of these two witnesses on
\nthe place of occurrence was doubtful and they being the
\ninterested witnesses were later on introduced by the Police
\nprojecting them as eye-witnesses.  He next contended that the
\nstatement of this witness under Section 161 Cr. P.C. was
\nrecorded by the Police after 3 or 4 days of the incident which
\nfact itself would cast serious doubt about the presence of this
\nwitness on the scene of occurrence.  We have independently
\nscrutinized the evidence of this witness and found that in spite
\nof lengthy cross-examination by the defence, her testimony
\ncould not be impeached in regard to the manner in which the
\nappellant had assaulted deceased Sunita with knife.  She had
\nwithstood the cross-examination very boldly and, in our view,
\nshe is a truthful witness and has given positive, satisfactory
\nand consistent account of the incident.  The evidence of this
\nwitness is free from any doubt and cannot be disbelieved or
\ndiscarded simply because she is a relative of deceased Sunita.\n<\/p>\n
30.\t  PW-Rupesh has corroborated the testimony of PWs-
\nSanjay and Archana in its entirety.  He has identified the
\nappellant, who had pulled hair of Sunita at the scene of
\noccurrence and then stabbed her on her head, neck and back
\nwithout any reason.  He corroborated the testimony of PW-
\nArchana to the extent they got frightened at the scene of
\noccurrence due to sudden horrible incident.  He has
\ncategorically repeated the entire sequence of events which has
\nbeen deposed by PW-Archana in her deposition.   It is his
\nevidence that in the evening around 7.00 or 7.30 p.m. he came
\nto know that Sunita had died due to the injuries she suffered
\nat the hands of the appellant.  The evidence of this witness
\nwas consistent and free from embellishment.  Nothing has
\nbeen elicited in the cross-examination to discredit his
\ntestimony.  A suggestion of the defence that in the evening of
\nthe incident he did not accompany PW-Archana, PW-Sanjay,
\ndeceased Sunita and deceased Nirmalabai for a walk as
\ndeposed by him in the Court, has been denied by him
\ncategorically.\n<\/p>\n
31.\t PW-6 corroborated the testimony of PWs-Archana and
\nRupesh to the extent that both these witnesses had come to
\nhis house and narrated the entire sequence of the incident to
\nhim.  He rushed to the spot of occurrence where he came to
\nknow that injured Sunita, Sanjay and Nirmalabai were already
\ntaken to the Hospital.  He immediately went to the Hospital at
\nPaoni, where he found Nirmalabai, Sanjay and Sunita lying in
\nan injured condition.  Sunita at that time was unconscious;
\ntherefore, he could not speak to her.  PW-Sanjay at that time
\nwas vomiting.  A suggestion of the defence that when he went
\nto the Hospital he found Nirmalabai in an unconscious
\ncondition was denied by him.  One more suggestion of the
\ndefence that the witness has falsely implicated the appellant
\nbecause deceased Sunita was his grand-daughter and also
\ndue to the reason that the father of the appellant was not on
\nspeaking terms with him, was emphatically denied by him.
\nTherefore, this witness has corroborated the testimony of PWs-
\n4 and 16 who had narrated the entire incident to him naming
\nthe appellant the author of the serious offence of murder of
\nSunita.\n<\/p>\n
32.\t  PW-Prakash, who lodged report [Ext. 28] of the incident,
\nstated that on hearing Sunita’s shouts “Wachawa Wachawa”,
\nhe rushed to the spot of incident and noticed Sunita lying with
\nbleeding injuries on the road side in front of the house of one
\nGaneshe Tahsildar and he also spotted Nirmalabai and one
\nman lying on the ground in an injured condition.  The injured
\nman had uttered “Golya Kadha Golya Kadha”.  This witness,
\nno doubt, has turned hostile to the prosecution and in the
\ncross-examination by the learned A.P.P. he denied having
\nmade portion marked ‘A’ of his statement to the Police to the
\nextent that Mahesh was standing near the place where Sunita,
\nher husband and Nirmalabai were lying with bleeding injuries,
\nholding gun between his knees and one knife in his hand and
\nat that time the appellant was shouting “arrest him arrest
\nhim”.  PW-1, the complainant, is a Medical Practitioner and
\nbelongs to village Paoni.  He knew the deceased Sunita, her
\nmother Nirmalabai and the appellant-Mahesh.  His dispensary
\nis at a distance of about 50 feet from the place of occurrence.
\nHis evidence is that Sunita, Nirmalabai and the man were
\nhaving bleeding injuries on their person.  He lifted them into a
\nrickshaw and took them to the Government Hospital at Paoni,
\nwhere he assisted the Medical Officer in giving medical
\ntreatment to the injured persons.  At about 7.30 or 8.00 p.m.
\nas per his version, Sunita died in the hospital whereas
\nNirmalabai and the said injured man were sent for better
\nmedical treatment to Medical College Hospital at Nagpur.  He
\nstated that he reported the entire incident to the Police in the
\nPolice Station and made a report (Ext. 28) which was signed
\nby him.  The testimony of this witness also corroborates the
\ntestimony of injured PW-Sanjay and other non-injured eye-
\nwitnesses to the extent that deceased Sunita, PW-Sanjay and
\nNirmalabai were lying with bleeding injuries at the scene of
\noccurrence on the day of incident.\n<\/p>\n
33.\t  It is the evidence of PW-PSI Dhimole that portion mark
\n‘A’ appearing in the statement of PW-1 was recorded by him
\ncorrectly.  The defence has not brought on record any evidence
\nto show why the Investigating Officer had recorded mark ‘A’
\nportion of the statement of PW-1 incorrectly.  If PW-1 the
\nmaker of the complaint has chosen not to corroborate his
\nearlier statement made in the complaint and recorded during
\ninvestigation, the conduct of such a witness for no plausible
\nand tenable reasons pointed out on record, will give rise to
\ndoubt the testimony of the Investigating Officer who had
\nsincerely and honestly conducted the entire investigation of
\nthe case.  In these circumstances, we are of the view that PW-
\n1 has tried to conceal the material truth from the Court with a
\nsole purpose of shielding and protecting the appellant for
\nreasons best known to the witness and therefore, no benefit
\ncould be given to the appellant for unfavourable conduct of
\nthis witness to the prosecution.\n<\/p>\n
34.\t  Laxmibai (PW-2) and Bilkish Begum (PW-3) have also
\nfollowed the same trend which PW-1 had adopted.  They were
\nconfronted by the learned A.P.P. with portion mark ‘A’  of their
\nearlier statements made to the Police implicating the appellant
\nas an assailant, but later on they have resiled from their
\nearlier statements perhaps for some undisclosed reasons and
\nconsiderations, which are confined to themselves.  The
\nevidence of PSI Dhimole (PW-18) has proved on record that he
\nhad recorded mark portion ‘A’ of the statements made by PWs-
\n2 and 3 during investigation, correctly and nothing more was
\nadded by him in their statements.\n<\/p>\n
35.\t  Nilkant (PW-15) is the resident of village Paoni and he is
\nacquainted with the appellant.  It is his evidence that at about
\n6.00 or 6.30 p.m. on the day of incident, he was sitting on a
\nbench in front of tea stall of one Gopal Somnathe, when he
\nsaw Nirmalabai, her daughter and son-in-law coming from the
\nbridge side of the river and going to the house of Nirmalabai.
\nHe heard some sound emanating from western side of the
\nroad.  When he was going to his house, he came to know near
\nthe house of one Parate that Nirmalabai’s son-in-law was given
\nbeatings.  He returned to the shop of Gopal Somnathe where
\nhe was told that the son-in-law of Nirmalabai had been taken
\nto the hospital in an injured condition.  He was allowed to be
\ncross-examined by the learned A.P.P. when he admitted that
\nduring investigation of this case the Police had recorded his
\nstatement and later on Special Judicial Magistrate had also
\nrecorded his statement under Section 164 Cr.P.C. along with
\nfour or five more witnesses.  He has denied having made
\nstatement to the Special Judicial Magistrate to the extent that
\non the day of incident he saw the appellant armed with a gun
\nand giving knife blows on the person of Sunita and her mother
\nNirmalabai.\n<\/p>\n
36.\t Shri Prabhakar (PW-17) Special Judicial Magistrate on
\n05.04.1988 recorded the statements of PW-Nilkanth, PW-
\nLaxmibai, PW-Archana and PW-Rupesh under Section 164
\nCr.P.C.  On 06.04.1988, the Special Judicial Magistrate
\nrecorded the statements of PW-Prakash – the complainant.
\nCopies of the statements were placed on record (Ext.79,
\nExt.80, Ext.81, Ext. 82 and Ex.83) respectively.   The Special
\nJudicial Magistrate denied the suggestion of the defence that
\nhe had prepared the statements of the said witnesses on the
\nbasis of the statements recorded by the Police.  PW-Prakash,
\nPW-Laxmi and PW-Nilkanth could not explain any reason why
\nthe Special Judicial Magistrate was interested to record the
\nportions of their statements incorrectly in which they had
\nnamed the appellant as an author of the crime.  The testimony
\nof the Investigating Officer also would not ipso facto give rise to
\ndoubt its credibility when the same was not shaken in cross-
\nexamination and he has no animus against the appellant to
\nframe him in a false case.   Merely because PWs-1, 2, 3 and 15
\ndid not support the prosecution case when they were
\nexamined in the Court, that would not, in the circumstances,
\nlead to the conclusion that the appellant was innocent.  The
\nInvestigating Officer and the Special Judicial Magistrate both
\nhave categorically stated that they had correctly recorded the
\nstatements of PWs-1, 2, 3 and 15 under Section 161, Cr.P.C.
\nand Section 164, Cr.P.C. respectively.   The testimony of the
\nInvestigating Officer and Special Judicial Magistrate in no
\ncircumstances and for no good reason could be disbelieved
\nand discredited and we, accordingly, accept their evidence in
\nits entirety without any hesitation.\n<\/p>\n
37.\t  The learned Trial Judge has disbelieved the evidence of
\nPW-Sanjay, PW-Archana, PW-Rupesh and PW-Sadashio
\nmerely on the grounds that they are close relatives of deceased
\nSunita and therefore interested witnesses and that no other
\nindependent witnesses who were present at the scene of
\noccurrence, had been examined by the prosecution and
\ntherefore there was no independent corroboration to the eye-
\nwitnesses account of the interested witnesses.\n<\/p>\n
38.\t  This Court in Salim Sahab v. State of M. P. [(2007) 1
\nSCC 699] held that mere relationship is not a factor to affect
\nthe credibility of a witness.  It is more often than not that a
\nrelation would not conceal actual culprit and make allegations
\nagainst an innocent person.  Foundation has to be laid if plea
\nof false implication is made.  In such cases, the court has to
\nadopt a careful approach and analyse evidence to find out
\nwhether it is cogent and credible.  In Masalti v. State of U. P.<\/a>
\n[AIR 1965 SC 202] this Court observed:  (AIR pp. 209-210,
\npara 14)<\/p>\n
 “But it would, we think, be unreasonable to
\ncontend that evidence given by witnesses should
\nbe discarded only on the ground that it is
\nevidence of partisan or interested witnesses.
\nThe mechanical rejection of such evidence on the
\nsole ground that it is partisan, would invariably
\nlead to failure of justice. No hard and fast rule
\ncan be laid down as to how much evidence
\nshould be appreciated. Judicial approach has to
\nbe cautious in dealing with such evidence; but
\nthe plea that such evidence should be rejected
\nbecause it is partisan cannot be accepted as
\ncorrect.”\n<\/p>\n
To the same effect are the decisions in State of Punjab v. Jagir
\nSingh<\/a> [(1974) 3 SCC 277], Lehna v. State of Haryana<\/a> [(2002) 3
\nSCC 76] and Gangadhar Behera v. State of Orissa<\/a> [(2002) 8
\nSCC 381].\n<\/p>\n
39.\t  As regards non-examination of the independent
\nwitnesses who probably witnessed the occurrence on the road
\nside, suffice it to say that testimony of the PW-Sanjay, an eye-
\nwitness, who received injuries in the occurrence, if found to be
\ntrustworthy of belief, cannot be discarded merely for non-
\nexamination of the independent witnesses.  The High Court
\nhas held in its judgment and, in our view, rightly that the
\nreasons given by the learned Trial Judge for discarding and
\ndisbelieving the testimony of PWs-4, 5, 6 and 8 were wholly
\nunreasonable, untenable and perverse.  The occurrence of the
\nincident, as noticed earlier, is not in serious dispute.  PW-
\nPrakash Deshkar has also admitted that he had lodged
\ncomplaint to the Police about the incident on the basis of
\nwhich FIR came to be registered and this witness has
\nsupported in his deposition the contents of the complaint to
\nsome extent.  It is well-settled that in such cases many a
\ntimes, independent witnesses do not come forward to depose
\nin favour of the prosecution.  There are many reasons that
\npersons some times are not inclined to become witnesses in
\nthe case for variety of reasons.  It is well settled that merely
\nbecause the witnesses examined by the prosecution are
\nrelatives of the victim, that fact by itself will not be sufficient to
\ndiscard and discredit the evidence of the relative witnesses, if
\notherwise they are found to be truthful witnesses and rule of
\ncaution is that the evidence of the relative witnesses has to be
\nreliable evidence which has to be accepted after deep and
\nthorough scrutiny.\n<\/p>\n
40.\t  PWs-4, 5, 6 and 8 have consistently supported the
\nprosecution case in their statements made before the Police as
\nwell as in deposition before the trial court.  We have referred to
\nand discussed their material evidence in the earlier paragraph
\nof this judgment and we do not find any cogent and valid
\nreason to discard and discredit their testimony, more so when
\ntheir evidence is corroborated by medical evidence and other
\nimportant piece of evidence appearing on record.  Dr. Laxman
\nFegadkar (PW-10) on 28.03.1988 had admitted injured Sunita,
\nNirmalabai and PW-Sanjay in the Government Hospital, Paoni.
\nHe immediately passed on the information to the Police Station
\nabout the admission of the injured persons in the Hospital.
\nHe received a letter from the Police Officer, Paoni, requesting
\nhim to certify whether Sunita was in a fit condition to give
\nstatement and in reply thereto, doctor certified that Sunita
\nwas not fit for giving oral statement as she was lying
\nunconscious.  He could not take sample of blood of Sunita as
\nher veins had collapsed.  On examination of Sunita, he found
\nas many as 9 injuries on her body.  In the opinion of the
\ndoctor, all the injuries were caused by a sharp- edged weapon
\nwithin a duration of six hours.  According to the opinion of the
\ndoctor, the general condition of Sunita was poor when she was
\nbrought to the hospital and Sunita expired around 7.15 p.m.
\non 28.03.1988.  Doctor placed on record Injury Certificate
\n(Ext. 54) of Sunita.  Dr. Laxman also conducted medical
\nexamination of injured Sanjay and on examination his
\ncondition was also found very poor and as many as three
\nsevere injuries were found on his person.  Injury No.1 could be
\ncaused by sharp object and Injury Nos. 2 and 3 were as a
\nresult of fire arm as per doctor’s opinion.  The duration of all
\nthe said injuries was reported to be within six hours.  The case
\nof PW-Sanjay was referred to Medical College, Nagpur, for
\nfurther management.  The injury statement of PW-Sanjay was
\nplaced on record mark (Ext. 55).  On the same day, Dr.
\nLaxman examined Nirmalabai and found as many as four
\ninjuries on her person caused by sharp object and the
\nduration of the injuries was within six hours.  Injured
\nNirmalabai was also referred to Nagpur for further
\nmanagement and her Injury Certificate was placed on record
\nmarked Exhibit 56.\n<\/p>\n
41.\t  Dr. Laxman medically examined the appellant at
\nabout 10.30 p.m. on 29.03.1988 when he was brought to the
\nhospital by Police Constable.  A lacerated wound 1 cm x 1cm
\nover right little finger, muscle deep over middle phalanx was
\nnoticed on his hand by the doctor.  The injury was found
\nsimple in nature and could have been caused by hard and
\nblunt object within a duration of about 24 hours.  The Injury
\nCertificate of the appellant was placed on record marked
\nExhibit 57.  Doctor collected five C.C. Venous blood from the
\nbody of the appellant.  On 30.03.1988, the Police Station
\nOfficer of Paoni sent one knife to the doctor for his opinion.
\nDr. Laxman found blade of the knife blood-stained.  Doctor
\nhas opined that the injuries found on the body of Sunita and
\non the person of PW-Sanjay, as mentioned in their Medical
\nCertificates, could be caused by knife which he identified
\n(Art. No. 20) before the Court.  In post mortem report of the
\ndeceased Sunita, doctor reported the injuries to be ante
\nmortem.  He found two internal injuries on the body of
\ndeceased Sunita: (1) Pleura-perforating injury 1 cm x 1 cm
\nupto apex of left lung and (2) Left lung: 2 cm x = cm injury to
\nthe apex of left lung plenty blood collection was seen in left
\nthoracic cavity.  Doctor opined the cause of death of Sunita
\ndue to shock and haemorrhage as a result of severe injury to
\nvital part, i.e., left lung.  Injury No.2 as described in post
\nmortem report was reported to be sufficient in ordinary
\ncourse of nature to cause the death of Sunita and was
\npossible with knife [Article No. 20].  In cross-examination, Dr.
\nLaxman categorically stated that when Sanjay and
\nNirmalabai were brought to the hospital, their conditions
\nwere serious; therefore they were referred to the Medical
\nHospital, Nagpur, for further medical treatment.  A
\nsuggestion of the defence that the injuries mentioned by him
\nin the Injury Statement (Ext. 54) and post mortem report (Ext.\n<\/p>\n
62) of deceased Sunita could not have been possibly  caused
\nby knife (Art. No. 20) has been categorically denied by him.\n<\/p>\n
42.\t  Thus, the testimony of the eye-witnesses including
\nthe injured eye-witness PW-Sanjay finds complete
\ncorroboration from the medical evidence in regard to the
\nsevere injuries sustained by deceased Sunita at the hands of
\nthe appellant with knife (Art. 20), the weapon of offence used
\nin the commission of the crime.  PW-Sanjay and his brother
\nPW-Manik deposed that the appellant had extended threats
\nto PW-Sanjay to get ready for facing dire consequences if he
\nwould marry with Sunita since the appellant was in love with
\nher since their school days.   The evidence of these witnesses
\non this aspect has remained intact and untouched from the
\ndefence side.\n<\/p>\n
43.\t The contention of the learned counsel for the
\nappellant that the conduct of PWs-Archana and Rupesh, the
\nalleged eye-witnesses, not accompanying the injured persons
\nto the hospital and not reporting the incident to the Police
\nshould be viewed with suspicion and, therefore,  their
\nevidence has to be rejected from consideration.    In support
\nof this submission, reliance has been placed on Surinder
\nSingh v. State of Punjab [(1989) Supp. (2) SCC 21].  In that
\ncase, after seeing the occurrence the eye-witness had not
\ngone to inform the parents and relatives of the deceased but
\nhad gone to his own house and slept for some time and then
\nwent and informed the matter to PW-3 and some other
\npersons.  In such circumstances of the case, this Court
\nfound the conduct of the said witness suspicious and his
\nexplanation that due to threats of the accused he did not
\ninform anyone forthwith was not found acceptable.  The facts
\nand circumstances of that case are entirely different to the
\nfactual situation of the present case.  In the present case, we
\nfind from the record that at the time of the occurrence of the
\ncrime PW-Archana was about 19 years of age whereas PW-
\nRupesh was hardly 14 years of age.  Both these witnesses as
\nearlier stated on seeing the appellant giving repeated knife
\nblows on some parts of neck, head and back of Sunita and
\ninflicting severe injuries to PW-Sanjay and Nirmalabai, they
\nimmediately rushed to the house of PW-Sadashio and
\npromptly reported the entire incident to him.  The conduct of
\nthese two children, in these circumstances, cannot be found
\nsuspicious or unnatural as contended by the learned
\ncounsel.  These witnesses have withstood the cross-
\nexamination with courage and boldness and their testimony
\ncould not be impeached by the defence in regard to the
\ngenesis of the incident.   The eye-witnesses have no animus
\nagainst the appellant to implicate him in a false case and
\nleaving the real assailant from the clutches of law. In the
\ncircumstances, no fault can be found in regard to the
\nconduct of these witnesses.  This contention raised deserves
\nto be rejected\n<\/p>\n
44.\tLearned counsel for the appellant next contended
\nthat because of the fault of the Investigating Officer not
\nrecording the statements of injured Nirmalabai, Sunita and
\nPW-Sanjay in the form of dying declarations; the true genesis
\nof the incident and name of the author of the crime have
\nbeen concealed by the  prosecution. In order to appreciate
\nthis contention, we have already pointed out in the earlier
\npart of the judgment that as per the opinion of Dr. Laxman,
\ninjured Sunita was in serious condition when she was
\nbrought to the hospital and she could not regain the
\nconsciousness till she succumbed to her injuries.  As regards
\nnon-recording of the statements of injured Sanjay and
\nNirmalabai, it is the explanation of the Investigating Officer
\nthat he tried to get their statements recorded, but
\nconsidering the seriousness of injuries on their person,
\ndoctor had referred them to the Medical College, Nagpur, and
\nbefore they could be taken to Nagpur, he made an attempt to
\nrequest the Tehsildar or any other Magistrate to visit hospital
\nfor recording statements of the injured persons, but no
\nofficers were found available at the relevant time for the said
\npurpose.  In these circumstances, no fault could lie on the
\nconduct of the Investigating Officer and this contention
\ntherefore is rejected. It is also submitted by the learned
\ncounsel for the appellant that there are some discrepancies,
\ncontradictions and omissions in the evidence of PW-Archana,
\nPW-Rupesh and PW-Sanjay in regard to giving different time
\nof the incident, reporting of the matter to the Police and
\npreparation of memos by the Investigating Officer during
\ninvestigation would create suspicion that they are not
\ntrustworthy and natural witnesses and they have tried to
\nimplicate the appellant as an assailant in a false case.  PW-
\nSanjay and PW-Manik both clearly and unambiguously
\ndeposed in regard to the motive of the appellant.  The
\nappellant, as noticed above, in his statement under Section
\n313, Cr. P.C., has admitted that he along with PW-Rajesh
\naround 5.00 or 5.30 p.m. on the date of incident had gone on
\na motorcycle towards the river side for evening walk.  The
\nversions of PWs-Sanjay and Manik that before marriage of
\nSanjay with Sunita, the appellant had gone to the house of
\nSanjay at Nagpur and disclosed the factum of his love-affair
\nwith Sunita have not been rebutted by the appellant in his
\nstatement.  PW-Rajesh and appellant himself have admitted
\nthat at about 5.30 p.m. or 6.00 p.m. on the day of
\noccurrence, both of them had gone on motorcycle to river
\nside for evening walk.  In cross-examination by Public
\nProsecutor, PW-Rajesh along with the appellant had returned
\nto their respective houses at about 7.30 p.m. and thereafter
\nat about 7.45 p.m. or 7.50 p.m. he again went to hill side
\nalong with Ulhas, the elder brother of the appellant.   The
\nHigh Court has observed that this piece of evidence of this
\nwitness was not possible to believe that when such incident
\nhad occurred in a village and his friend appellant was
\narrested by the Police at about 7.30 p.m. for the murder of
\nSunita and causing severe injuries to PW-Sanjay and
\nNirmalabai, this witness along with elder brother of the
\nappellant would have gone for second round of walk and in
\nsuch sequence of events, PW-Rajesh was obviously hiding the
\ntruth from the Court.  His evidence does not lend any
\nsupport to the defence plea of the appellant that he has been
\nfalsely framed in this case by the Police or by eye-witnesses
\nfor some ulterior reasons.\n<\/p>\n
45.\tThe appellant was arrested by the Investigating
\nOfficer in the presence of PW-Vithoba Khobragade and PW-
\nHarihar.  The learned counsel submitted that there is
\ndiscrepancy in giving 7.30 p.m. the time of the arrest of the
\nappellant, which was factually incorrect as the same time
\nwas mentioned in the FIR and no reliance, therefore, could be
\nplaced on such documents and according to the counsel no
\nreliance could be placed on the evidence of PW-Harihar being
\nhabitual panch witness of the Police.  It is no doubt true that
\nPW-Harihar in cross-examination admitted that during the
\nperiod from 1978 to 1981 he had given evidence as Panch in
\n5 or 6 cases in the Court on behalf of the Police as his
\nresidence is located in front of the Police Colony.  It is
\ndifficult to believe that simply because this witness in the
\npast had appeared as Panch in the Court during the period
\n1978 to 1981 and for that sole reason he has to be branded
\nas habitual Panch witness and in this case for the incident of
\n1988 he had blindly signed Panchnama (Ext. 41).  PW-
\nVithoba Khobragade is a Legal Practitioner and he has fully
\nsupported the preparation of the arrest panchnama of the
\nappellant.  The appellant has not pointed out any reason as
\nto why PW-Vithoba Khobragade has deposed against him.
\nThe arrest Panchnama (Ext. 41) would reveal that the
\nappellant at the time of arrest was wearing a sky colour white
\ncheck manila and brown catechu coloured full-pant and
\nstains of blood were noticed at his shirt when he was
\narrested.  It also finds mentioned in the Panchnama that the
\nappellant had a cut injury on his right little finger and blood
\nwas oozing out of the said injury.   The Panchnama was
\nprepared by the Investing Officer immediately after the
\nincident.  The appellant has not explained the existence of
\ncut injury on his right little finger.  Dr. Laxman recorded the
\ncut injury on the little finger of the appellant in the Medical
\nReport (Ext. 57).  The injury was simple in nature and was
\ncaused by blunt object.  Besides the arrest panchnama (Ext.\n<\/p>\n
41), the Investigating Officer prepared panchnama (Ext. 45)
\nby which samples of nail clippings of the appellant were also
\ntaken in the presence of PW-Vithoba Khobragade.  Chemical
\nAnalyser’s Report (Ext. 100) shows that the shirt, pant and
\nnail clippings of the appellant contained stains of human
\nblood.  The learned counsel contended that the prosecution
\nhas not taken the sample of blood group of the deceased
\nSunita for comparison with group of blood found on wearing
\napparel of the appellant and in such circumstances it could
\nnot be established that the group of blood found on the
\nclothes of the appellant as well as on his nail clippings was
\nthe blood group of the deceased Sunita.  He also contended
\nthat the prosecution has not explained the injury found on
\nthe little finger of the right hand of the appellant and,
\ntherefore, the appellant on this ground was also entitled to
\nthe benefit of doubt which has rightly been given to him by
\nthe trial court.  We are afraid to accept this contention of the
\nlearned counsel.  Dr. Laxman in his deposition before the
\nCourt clearly stated that on receipt of a letter from Police
\nStation Officer requesting for taking sample of blood of
\ndeceased Sunita, he tried to collect her blood but he was
\nunable to collect the same as all veins of Sunita had
\ncollapsed.  He handed over Certificate (Ext. 52) to the Police
\nto that effect.  The appellant has not explained that the
\nclothes which he was wearing at the time of arrest contained
\nstains of his own blood oozing out of the injury sustained by
\nhim on little finger of his right hand.  It is no doubt true that
\nhuman blood found on the clothes and nail clippings of the
\nappellant was not conclusive proof that it belonged to the
\nblood group of the deceased.  The decision of this Court in
\nRaghu Nath v. State of Harnaya & Anr. [(2003) 1 SCC 398],
\nrelied upon by the appellant on this point, is of no assistance
\nto him in the facts and circumstances of the present case.  In
\nthat case, this Court held that where prosecution evidence
\nconsisted of interested or inimical witnesses and defence
\nversion would compete in probability with that of the
\nprosecution, non-explanation of the injuries of grievous
\nnature sustained by the accused rendered the prosecution
\nstory doubtful.  That was a case of mob-fight in which
\ninjuries were received by both the parties in the melee.\n<\/p>\n
46.\t  This Court in Krishan & Ors. v. State of Haryana<\/a>
\n[(2006) 12 SCC 459] held that merely because prosecution
\nhas failed to explain injuries on the accused, the same
\ncannot be a solitary ground for doubting the prosecution
\ncase, if otherwise, evidence relied upon is found to be
\ncredible.  In the case on hand, as we are of the view that no
\nground is made out to disbelieve and discard the evidence of
\nPWs-4, 8 and 16, who are injured and non-injured eye-
\nwitnesses and whose evidence is corroborated by other oral
\nand documentary evidence including the medical evidence,
\ntherefore non-explanation of simple injury on little finger of
\nthe right hand of the appellant by the prosecution is
\ninsignificant in the teeth of the overwhelming, cogent,
\nconsistent and trustworthy evidence appearing on record
\nagainst the appellant for holding him guilty of the
\ncommission of the offence.\n<\/p>\n
47.\t  The recovery of the gun and knife was effected by
\nthe Investigating Officer at the instance of the appellant from
\nhis house in the presence of panch witnesses PW-Vithoba
\nKhobragade and PW-Harihar.  It is no doubt true that PW-
\nVithoba Khobragade deposed that the appellant did not
\ndisclose anything before the Police, but he also deposed that
\nthe Police had recovered a gun and one knife from the house
\nof the appellant at his instance at about 9.40 to 10.30 on
\n28.03.1988.  The High Court, in our view, rightly observed
\nthat it was not possible to hold that the prosecution
\nwitnesses or the Police had planted these articles in the
\nhouse of the appellant, so as to make a show of discovery of
\nthe weapons of offence from him.  The blade of the knife
\nrecovered from the appellant contained blood stains as per
\nthe version of Dr. Laxman when this weapon was shown to
\nhim by the Police.  As per the Chemical Analyser’s Report,
\nstains of human blood were found on the knife, which was
\nproduced in the Court and identified by Dr. Laxman who
\ncategorically stated that injuries found on the dead body of
\nSunita could be caused by the said weapon (Article No.20).\n<\/p>\n
48.\t  The High Court, on reappraisal and reassessment of
\nthe entire evidence on record, came to the conclusion that
\nimmediately after the occurrence a report came to be lodged
\nto the Police Station against the appellant who has been
\nidentified by the PW-Sanjay, an injured eye-witness and non-
\ninjured eye-witnesses and further that the appellant had
\nstrong motive to commit the murder of Sunita with malice
\ntowards PW-Sanjay-her husband, as well as her deceased
\nmother Nirmalabai, therefore, simply because there are some
\nminor discrepancies in the evidence of witnesses which are of
\nno consequence to the true genesis of the case and that some
\nevidence has not been adduced by the prosecution, though
\nmight have been available, would not be sufficient grounds to
\nbelieve that the appellant has been booked in a false case.
\nThere is nothing on record brought by the appellant to show
\nthat it was quite possible that the witnesses would spare the
\nreal culprit and implicate him in a false case.  On the basis of
\nthe entire evidence elaborately discussed by the High Court,
\nit cannot be held that the appellant, in the present case, has
\nbeen framed on suspicion.\n<\/p>\n
49.\t  Having given our careful consideration to the
\nsubmissions made by the learned counsel for the parties and
\nin the light of the evidence discussed in the earlier part of the
\njudgment and tested in the light of the principles of law
\nhighlighted above, it must be held that the interference made
\nin the present case by the High Court with the order of
\nacquittal passed by the learned Additional District Judge, was
\nwholly justified and warranted. The evaluation of the findings
\nrecorded by the High Court do not suffer from any manifest
\nerror and improper and mis-appreciation of evidence on
\nrecord.  Hence, we agree with the opinion of the High Court
\nthat the appellant is the real culprit and he has been rightly
\nheld guilty of the offence punishable under Section 302 of IPC.
\nAll the contentions raised by the learned counsel for the
\nappellant, in our view, do not merit acceptance.\n<\/p>\n
50.\t  In the result, there is no merit in this appeal and it is,
\naccordingly, dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahesh S\/O Janardhan Gonnade vs State Of Maharashtra on 10 April, 2008 Author: L S Panta Bench: P. P. Naolekar, Lokeshwar Singh Panta CASE NO.: Appeal (crl.) 545 of 2007 PETITIONER: Mahesh s\/o Janardhan Gonnade RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 10\/04\/2008 BENCH: P. P. Naolekar & Lokeshwar Singh Panta […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-17718","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahesh S\/O Janardhan Gonnade vs State Of Maharashtra on 10 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahesh-so-janardhan-gonnade-vs-state-of-maharashtra-on-10-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahesh S\/O Janardhan Gonnade vs State Of Maharashtra on 10 April, 2008 - 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