Bombay High Court
The State Of Maharashtra vs Chhabilal Hilal Patil on 31 July, 2009
Bench: Naresh H. Patil, Shrihari P.Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 227 OF 1996
1 The State of Maharashtra ...Appellant
VERSUS
1 Chhabilal Hilal Patil,
adult,
2 Indubai w/o Nimba Patil,
adult,
Both residing at village
Vishwanath, Taluka and
District Dhule ...Respondents
.....
Shri B.J.Sonwane, A.P.P. for the appellant/State
Shri R.M.Deshmukh, advocate for the respondents
accused nos. 1 and 2.
.....
CORAM : NARESH H. PATIL
AND
SHRIHARI P.DAVARE, JJ.
DATED OF RESERVING
THE JUDGMENT : 21.07.2009
DATE OF PRONOUNCING
THE JUDGMENT : .07.2009
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2
J U D G M E N T :(Per Shrihari P.Davare, J.) 1 Perused. Heard learned respective counsel for the parties.
2 The challenge in this appeal is to the judgment and order passed by the learned Sessions Judge, Dhule in Sessions Case No. 165 of 1990 on 30.1.1991, thereby acquitting accused nos. 1 and 2 from the offences punishable under Sections 302 and 201 r/w Section 34 of the Indian Penal Code.
3 The factual matrix, briefly stated, are as follows :-
On 29.3.1990 one Hiraman Shivram i.e. the police patil of village Vishwanath came to Songir police station at about 10.30 a.m. and made report regarding accidental death in the well in the field of Dangal Ananda Patil. Accordingly, P.S.O. Wankhede registered A.D.No. 19 of 1990 under Section 174 of the Code of Criminal Procedure. As per directions of P.S.O. Wankhede, PW1- A.S.I. Akbarbeg Mirza went to the field of Dangal Anand Patil of Vishwanath village at about 4.00 p.m. On 29.3.1990 to investigate the matter and found a gunny bag in the well and legs were ::: Downloaded on - 09/06/2013 14:51:28 ::: 3 protruding out of the said bag. The said gunny bag was taken out from the well in presence of two panchas which was found to be tied with the iron wire. Hence, on opening the gunny bag, it found to contain a dead body of a male aged about 35 years having marks of throttling at the neck and the neck was found tied with nylon rope. Accordingly, PW1-A.I.S. Mirza drew the inquest panchanama Exh.8 of the said dead body which was highly decomposed. Police patil Hiraman Shivram ig could not identify the same. Thereafter the said dead body was sent to the Civil Hospital, Dhule for autopsy through constable Shaikh and received advance death certificate Exh.24 dated 30.3.1990. PW1- A.S.I. Mirza also drew panchanama of the scene of offence Exh.10 and attached the said gunny bag and iron wire thereunder.
Accordingly, PW5 Dr. Anil Raghuwanshi conducted postmortem on the dead body on 29.3.1990 and gave the approximate time of death from the time of postmortem that about 2 to 3 days back therefrom and also gave the cause of death as strangulation with asphyxia.
4 On perusal of advance certificate, PW1-A.S.I. Mirza lodged a complaint dated 30.3.1990 Exh.17 on behalf of the State, since he realised that it was a case of homicidal death and the said complaint was registered at C.R.No.19 of 1990 under Section ::: Downloaded on - 09/06/2013 14:51:28 ::: 4 302 of the Indian Penal Code. Thereafter, PW1-A.S.I. Mirza handed over the further investigation of the said C.R. To PW8- P.S.I. Prakash Pardeshi. On 31.3.1990, PW8-P.S.I. Pardeshi recorded statements of some witnesses. Thereafter during the course of investigation, suspicion against accused nos. 1 and 2 was raised and, therefore, they were arrested on 11.4.1990 under the said C.R. No. 19 of 1990. PW4 Dagdu Patil i.e. son of sister of deceased identified the dead body as that of Nimba and also identified the clothes of the deceased Nimba on 11.4.1990.
5 On 12.4.1990 memorandum panchanama Exh.28 was drawn and the bullocks and bullock cart were seized thereunder at the instance of accused no.1 in presence of panchas.
Moreover, memorandum panchanamas Exhs. 30 and 31 were drawn on 13.4.1990 and iron wire was seized thereunder at the instance of accused no.1 in presence of panchas and the said wire was compared with Article No.2 i.e. wire found around the neck of the deceased and both were found matching. Thereafter the Circle Officer drew the sketch of scene of offence and the said sketch and its report are marked at Exhs. 15 and 15-A. Moreover, the viscera of the deceased was sent to the Chemical Analyser for examination purpose and the chemical analysis report dated 12.4.1990 thereof was received which is marked as Exh.14.
::: Downloaded on - 09/06/2013 14:51:28 ::: 56 After completion of investigation, PW8-P.S.I. Pardeshi filed the charge sheet before the learned Judicial Magistrate, First Class, Dhule against accused nos. 1 and 2 on 30.7.1990.
Thereafter the learned Judicial Magistrate, First Class, Dhule committed the said case to the court of Sessions, Dhule for the trial.
7Accordingly charge came to be framed against accused nos. 1 and 2 by the court of Sessions, Dhule on 18.12.1990 at Exh.
2 under Section 302 r/w Section 34 of the Indian Penal Code and also Section 201 r/w Section 34 of the Indian Penal Code. Accused nos. 1 and 2 pleaded not guilty to the respective charges levelled against them and claimed to be tried. The prosecution conducted the trial against accused nos. 1 and 2 and examined as much as 8 witnesses to substantiate the charges levelled against accused nos. 1 and 2 as mentioned below.
1 PW1 :- A.S.I. - PW1 Akbarbeg Ahmedbeg Mirza, r/o Navapur (Exh.16) - Complainant 2 PW2 :- Nana Tapiram Patil, r/o Vishwanath (Exh.18)
- servant of accused no.1 3 PW3 :- Babulal Saysing Bhil, r/o Vishwanath (Exh.19)
- Watchman 4 PW4 :- Dagadu Shamrao Patil, ::: Downloaded on - 09/06/2013 14:51:28 ::: 6 r/o Vishwanath (Exh.22)
- son of sister of accused.
5 PW5 :- Dr. Anil Raghuwanshi, M.O. (Exh.23) -
P.M. Doctor.
6 PW6 :- Yashwant Tanaji Patil, r/o Songir (Exh.29) (Panch to memorandum panchanamas Exhs. 27 & 28 regarding seizure of bullocks and bullock cart) 7 PW7 :- Nimba Vyankat Patil, r/o Vishwanath (Exh.26) (Panch to memorandum panchanamas Exhs.
30 & 31regarding seizure of iron wire) 8 PW8 :- Prakash Dhondusing Pardeshi (Exh.32) (Panch to memorandum panchanamas Exhs.
30 & 31 regarding seizure of iron wire) 8 During the course of trial, after adducing/producing the evidence by the prosecution the statements of accused nos. 1 and 2 were recorded under Section 313 of the Code of Criminal Procedure and they denied the alleged incriminating circumstances against them respectively and they filed their respective written statements dated 21.1.1991 Exh.38 therein.
Accused no.1 categorically denied the charges and also denied the alleged illicit relations between him and accused no.2 and also stated that PW2 Nana Tapiram, PW3 Babulal and PW4 Dagdu Patil have deposed against him under the influence of Sarpanch Sahebrao Nathu Patil and also the police personnel and ::: Downloaded on - 09/06/2013 14:51:28 ::: 7 he further denied the recovery/discovery of bullocks and bullock cart and iron wire at his instance. Accordingly, he claimed to be innocent. Moreover, accused no.2 also filed written statement on the same day i.e. 21.1.1991 at Exh.39 and thereby denied the charges levelled against her specifically and also denied her alleged illicit relations with accused no.1. She also stated that PW2 Nana Tapiram has deposed against her under the influence of Sarpanch and police personnel. She further denied that she requested for help from PW2 Nana Tapiram to kill her husband.
She also stated that her husband came on 22.3.1990 from Surat and left the house for Surat in the evening of 24.3.1990. She further stated that she was not called by the police personnel to identify her husband's dead body on 29.3.1990. She also stated that on 24.3.1990 PW3 Babulal brought her husband in drunken condition to her home and accused no.1 was present in her house at that time is false. She further categorically stated that her husband i.e. deceased Nimba never suspected about her alleged illicit relations with accused no.1 and accordingly she claimed to be innocent.
9 Considering the evidence adduced/produced on record and also considering rival submissions made before him, the learned Sessions Judge, Dhule acquitted accused nos. 1 and 2 ::: Downloaded on - 09/06/2013 14:51:28 ::: 8 from the charges levelled against them in Sessions Case No. 165 of 1990 vide judgment and order dated 30.1.1991. Being aggrieved and dissatisfied by the said judgment and order, the State has preferred the present Criminal Appeal against the acquittal under Section 378 (1) of the Code of Criminal Procedure.
10 At the out set, admittedly the entire case of the prosecution is based upon the circumstantial evidence, since there is no eye witness in the instant case. The learned Sessions Judge has framed the points for determination (1) in respect of homicidal death of deceased Nimba; (2) in respect of alleged murder of deceased Nimba by accused nos. 1 and 2; and (3) in respect of destruction of evidence by accused nos. 1 and 2.
11 As regards point no.1 for determination considering the ocular evidence and also considering the postmortem notes, inquest panchanama, medical evidence, the learned Trial Judge arrived to the conclusion that death of deceased Nimba occurred by strangulation with asphyxia and concluded that death of deceased Nimba was homicidal one and the reasoning adopted for the said conclusion is proper and logical and no interference therein is warranted.
::: Downloaded on - 09/06/2013 14:51:28 ::: 912 As regards the motive to the alleged committal of murder of deceased Nimba by accused nos. 1 and 2, it was canvassed that there was illicit relations between accused nos. 1 and 2 and deceased Nimba came to know about the same, as well as deceased Nimba used to assault and illtreat his wife i.e. accused no.2 and hence it is alleged that accused nos. 1 and 2 eliminated deceased Nimba at about 11.30 p.m. on 24.3.1990 by committing his murder.
13 In the said context, prosecution has adduced the material evidence of PW2 Nana Tapiram - i.e. servant of accused no.1, PW3 Babulal and PW4 Dagdu Patil son of sister of deceased.
14 Firstly coming to evidence of PW2 Nana Tapiram i.e. servant of accused no.1 who stated in his deposition that Savkar is son of accused no.1 and accused no. 2 is the mother of Savkar.
However, during cross-examination he stated in para 4 that as the people from the village call Sahukar as the son of accused no.1, he stated that he is son of accused no.1 from accused no.2 and he further categorically stated that he has no personal knowledge about the illicit relations between accused nos. 1 and 2. The suggestion was also given to him that he was deposing falsely at the instance of Sarpanch Sahebrao Nathu Patil, but same was ::: Downloaded on - 09/06/2013 14:51:28 ::: 10 denied by him. Hence, evidence of PW2 Nana Tapiram in respect of alleged illicit relations between accused nos. 1 and 2 has been shattered in the cross-examination.
15 Keeping in mind the said aspect and coming to the evidence of PW3 Babulal, he stated that accused nos. 1 and 2 are having illicit relations with each other. However, there is no cross-
examination in respect of the said statement and suggestion was given that he was deposing falsely at the instance of Sarpanch and police, but same was denied by him. Thus, the statement of PW3 Babulal regarding alleged illicit relations between accused nos. 1 and 2 has gone unchallenged.
16 That takes us to the deposition of PW4 Dagdu Patil, wherein he has stated that there was love affair between accused nos. 1 and 2 and Nimba was telling him regarding the illicit relations between accused nos. 1 and 2 on one hand and accused no.2 on the other, while he was under the influence of liquor. In fact, the said very contents have amounted to omission in the police statement of PW4 Dagdu Patil and improvement in his examination-in-chief which can be construed as vital omission causing deformity in the testimony of PW4 Dagdu Patil in respect of his very contention regarding alleged illicit relations between ::: Downloaded on - 09/06/2013 14:51:28 ::: 11 accused nos. 1 and 2. Moreover, PW4 Dagdu Patil has stated that deceased Nimba himself informed him about the alleged illicit relations between accused nos. 1 and 2 under the influence of liquor, but said statement itself is inadmissible, and apart from that there is no personal knowledge of the alleged illicit relations between accused nos. 1 and2 to PW4 Dagdu Patil and, therefore, also the veracity of the said statement comes under the cloud of suspicion.
17 Accordingly, considering the evidence of PW2 Nana Tapiram, PW3 Babulal and PW4 Dagdu Patil in respect of alleged illicit relations between accused nos. 1 and 2 as the motive for eliminating deceased Nimba by committing his murder, it is amply clear that the testimony of PW2 Nana Tapiram cannot be of any help to the case of the prosecution and the testimony of PW4 Dagdu Patil is hit by the vital omission in respect of said very contention and the sole testimony of PW3 Babulal in respect of the said proposition without having any corroboration thereto cannot be accepted and accordingly there is variance in the testimonies of PW2 Nana Tapiram, PW3 Babulal and PW4 Dagdu Patil.
18 Moreover, the respective testimonies of PW2 Nana ::: Downloaded on - 09/06/2013 14:51:28 ::: 12 Tapiram, PW3 Babulal and PW4 Dagdu Patil nowhere disclosed any particular incident of alleged illicit relations between accused nos. 1 and 2 and, therefore, in the absence of any details, particulars and specific instances narrated by the afore said witnesses, that too without the proof of any cogent evidence therefor, the said allegations bear no substance. Hence, the learned Trial Judge has rightly arrived to the conclusion that the motive as suggested by the prosecution cannot be the clinching incriminating circumstance against accused nos. 1 and 2 which would establish that accused nos. 1 and 2 alone had committed the alleged crime, and hence, no interference is required therein.
19 That takes us to the next circumstance as regards last seen together, it is alleged that the deceased Nimba was last seen together in the company of accused nos. 1 and 2. In the said context, the testimonies of PW3 Babulal and PW4 Dagdu Patil are material and same are required to be scrutinized.
20 PW3 Babulal stated in his deposition that on 24.3.1990 at about 4.00 p.m. to 5.00 p.m. when he was going to the field, he met deceased Nimba on the way and on the request of PW3 Babulal, deceased Nimba agreed to provide him liquor and accordingly both of them went at the house of Sham Naik at ::: Downloaded on - 09/06/2013 14:51:28 ::: 13 Sukvad and started consuming liquor. During the said session, PW2 Nana Tapiram arrived there and gave half bottle of liquor at the instance of accused no.1. Thereupon, PW3 Babulal conveyed deceased Nimba that it was provided by accused no.1, but deceased Nimba declined to accept the same since it was provided by accused no.1. Thereafter deceased Nimba asked PW3 Babulal to take him to his house. Accordingly both of them left the hut of Sham Naik and proceeded towards the house of deceased Nimba. In between both of them fell down near Mahadeo temple and with the help of Sona Tikaram Patil, PW3 Babulal carried deceased Nimba to his house. PW3 Babulal stated that at that time accused nos. 1 and 2 were in the house of deceased Nimba.
Sona Tikaram Patil left the house of Nimba, but PW3 Babulal waited out side the house of Nimba. Thereafter accused no.1 also asked to go to his house. However, PW3 Babulal stated that he was unable to walk properly due to heavy drinking. Thereupon, accused no.1 called PW2 Nana Tapiram his servant and Nana Tapiram took PW3 Babulal to his hut in the field at about 11.00 to 11.30 p.m. On 24.3.1990. Thereafter on 29.3.1990 the dead body was taken out from the well of Dagdu Ananda Patil.
21 According to the prosecution, deceased Nimba was seen in the company of accused nos. 1 and 2 on the night of ::: Downloaded on - 09/06/2013 14:51:28 ::: 14 24.3.1990 and dead body was found on 29.3.1990 and hence it was canvassed that the circumstance of seeing deceased Nimba last in the company of accused nos. 1 and 2 is the connecting link between the alleged crime and accused nos. 1 and 2 herein.
22 However, in the cross-examination the version of PW3 Babulal is different and he stated that as soon as deceased Nimba was taken to his house, he told him to go away and he went along with PW2 Nana Tapiram. However, there was no talk between deceased Nimba and accused no.1 in his presence. There was also no talk between accused no.2 and deceased Nimba in his presence and accordingly the version of PW3 Babulal in his examination-in-chief and his version in the cross-examination differ from each other.
23 Keeping in mind the said aspect and coming to the deposition of PW2 Nana Tapiram, wherein he stated that at about 11.00 to 11.30 p.m. accused no.1 came to his house and woke him up and he asked him to take PW3 Babulal to the field of Pardhi, and accordingly, he took PW3 Babulal to the field of Pardhi and straight way he went to his house. However, he has not supported the version of PW3 Babulal that deceased Nimba was in the company of accused nos. 1 and 2 at about 11.00 to 11.30 ::: Downloaded on - 09/06/2013 14:51:28 ::: 15 p.m. On 24.3. 1990, and even the testimony of PW2 Nana Tapiram is silent regarding the said date given i.e. 24.3.1990. Hence, in the absence of corroboration from the testimony of PW2 Nana Tapiram to the proposition put forth by PW3 Babulal that deceased Nimba was last seen in the company of accused nos. 1 and 2 on 24.3.1990 at about 11.30 p.m. same cannot be accepted and consequently cannot be believed. Moreover, even assuming for the sake of assumption ig without admitting that deceased Nimba was last seen in the company of accused nos. 1 and 2 in the night of 24.3.1990, the dead body was found on 29.3.1990, and about five days were lapsed in between and, therefore, it cannot be said with certainty that deceased Nimba was not found moving in the village during the said period.
24 Besides, there is another angle to the said aspect that PW5 Dr. Anil Raghuwanthi has stated in his deposition that on 29.3.1990 dead body of unknown person was brought to Civil Hospital, Dhule for postmortem and accordingly he carried postmortem thereon between 11.45 p.m. to 1.00 a.m. On 29.3.1990 and issued advance certificate to police bearing Exh.24 and cause of death was given as strangulation with asphyxia. He also stated that the approximate time of death from the date of postmortem is 2 to 3 days. Thus, even considering that the ::: Downloaded on - 09/06/2013 14:51:28 ::: 16 alleged death of deceased Nimba occurred after 11.00 to 11.30 p.m. on 24.3.1990 when allegedly deceased Nimba was seen in the company of accused nos. 1 and 2 as stated by PW3 Babulal, as per the theory advanced by the prosecution, as per the opinion given by Dr. Anil Raghuwanshi, the death of deceased Nimba occurred 2 to 3 days prior to the time of postmortem i.e. 11.45 p.m. to 1.00 a.m. on 29.3.1990, the occurrence of alleged death of deceased Nimba can ig be construed as on 26th or 27th March, 1990 and, therefore, there is gap of 2 to 3 days i.e. from 24.3.1990 to 26/27.3.1990 as per the theory advanced by the prosecution and opinion given by PW5 Dr. Anil Raghuwanshi in that respect and there is no plausible explanation by prosecution in that respect, and hence, the alleged circumstance of deceased Nimba found in the company of accused nos. 1 and 2 lastly at about 11.00 to 11.30 p.m. on 24.3.1990 cannot be construed as incriminating circumstance against them.
25 The learned Additional Public Prosecutor relied upon the following observations made in para no.30 by the Division Bench of this court in the case reported at 2001 ALL MR (Cri) 149, Atmaram s/o Istari Shende vs The State of Maharashtra [R.K.Batta & P.S.Brahme, JJ.].
::: Downloaded on - 09/06/2013 14:51:28 ::: 17" As stated earlier, the whereabouts of deceased Indubai were not known since after 8-1-1985, as she could be traced with the accused while proceeding by the road on 8-1-1985. The accused himself did not bring back deceased Indubai to her mother's house. It was on 11-1-1985 that the dead body of Indubai was found. It is also brought on record through the evidence of witness Abaji Meshram (P.W.14) that the accused was seen by him going by bicycle on 8-1-1985 at noon. He was alone. This has significance in the background of the fact that earlier on the same day, the accused was found with Indubai on the road by the witnesses. The accused has not given any explanation as to how and where deceased Indubai was missing. The accused being the husband of Indubai, was required to give explanation as to the whereabouts of Indubai when he had taken her with him on 7-1-1985 and was seen with her on 8-1-1985. What we find is that the accused simply denied the incriminating circumstance including the death of Indubai in his examination under Section 313 Cr.P.C. A false answer offered by the accused when his attention was drawn to the aforesaid circumstances, renders that circumstances capable of inculpating him. "
However, considering the facts and circumstances in ::: Downloaded on - 09/06/2013 14:51:28 ::: 18 the present case in hand and also considering the facts and circumstances in the case before the Division Bench of this Court, in view of the foregoing discussion, it is amply clear that they differ from each other and hence, the afore said observations made in the said case cannot be of any aid and assistance to the case of prosecution herein.
26 Moreover, the conduct of accused nos. 1 and 2 is also required to be considered and in the natural course of events, had accused nos. 1 and 2 really caused death of Nimba by strangulation after 11.00 to 11.30 p.m. On 24.3.1990 i.e. during the intervening night of 24th and 25th March, 1990, they would have immediately absconded, but so did not happen and accused nos. 1 and 2 remained in the village only and the said conduct of accused nos. 1 and 2 goes in their favour.
27 As regards the alleged extra judicial confessions made by accused nos. 1 and 2 before PW2 Nana Tapiram, it is significant to note that even though PW3 Babulal was along with PW2 Nana Tapiram at the time of making the said alleged extra judicial confession by accused nos. 1 and 2 before him, the testimony of PW3 Babulal is totally silent in that respect. Thus, considering the variance in the testimony of PW2 Nana Tapiram, ::: Downloaded on - 09/06/2013 14:51:28 ::: 19 more particularly in his examination-in-chief and cross-
examination in respect of sequence and also considering the silence in the testimony of PW3 Babulal regarding the said alleged extra judicial confessions by accused nos. 1 and 2, the said alleged extra judicial confession cannot be construed as worth believing and further cannot be termed as incriminating circumstance against accused nos. 1 and 2.28
As regards the discovery/recovery of bullocks and bullock cart at the instance of accused no.1 under memorandum panchanamas dated 12.4.1990 at Exhs. 27 and 28, the prosecution has examined PW6 Nimba Patil panch in that respect.
According to him, on 12.4.1990, accused no.1 made voluntary statement and expressed desire to show the bullocks and bullock cart and, therefore, memorandum panchanma Exh. 27 was prepared and accused no.1 led the panchas and police to Nimb tree where bullock cart was lying and bullocks were found tied there. Accordingly seizure panchanama Exh.28 was prepared and they were seized thereunder. However, it is important to note that the place where bullocks and bullock cart was fond is accessible to public at large, and more pertinently, the bullocks and bullock cart were lying in front of house of accused no.1 only since they belong to him. PW6 Nimba Patil further admitted that before ::: Downloaded on - 09/06/2013 14:51:28 ::: 20 going to Songir police station they passed by the side of house of accused no.1, but they did not see bullocks and bullock cart in front of house of accused no.1.
29 Hence, considering the said infirmities that the place where bullocks and bullock cart was found was accessible to public at large and they were found in front of the house of accused no.1 to whom they belong to, and further considering the admission given by PW6 Nimba Patil that while going to Songir police station they passed by the side of house of accused no.1, but they did not see the bullocks and bullock cart in front of house of accused no.1, the said alleged recovery/discovery under memorandum panchanama under Section 27 of the Evidence Act cannot be construed as incriminating circumstance against accused no.1 to hold that accused no.1 carried the dead body in the said bullock cart towards the well, so as to connect the link between accused no.1 and the alleged guilt.
30 As regards memorandum panchanama Exhs. 30 and 31 in respect of seizure of iron wire, the prosecution has examined PW7 Yashwant Patil, who stated that on 13.4.1990 accused no.1 expressed his readiness and willingness to show the place where remaining iron wire was kept. Accordingly memorandum ::: Downloaded on - 09/06/2013 14:51:28 ::: 21 panchanama Exh.30 was drawn and thereafter accused no.1 led the panchas and police to the threshing floor of Bhatu Chintaman in the field. Accused no.1 then entered into the hut and shown the remaining wire and place from where it was taken and accordingly said iron wire was removed from that place and seized under memorandum panchanama Exh.31. However, PW7 Yashwant Patil admitted in the cross-examination that said hut was closed by 3 sides and open by one side. There was no other material except the said wire in the said hut and the said iron wire was found hanging on the wooden plank. Thus, even the said hut from where iron wire was allegedly seized under memorandum panchanamas Exhs. 30 and 31 at the instance of accused no.1, was open by one side and was accessible to public at large and it was found hanging on the wooden plank openly. Moreover, it is pertinent to note that there is nothing on record to show the guage of said wire seized under memorandum panchanama and kind of material of which it was prepared. Hence, merely the contention of Investigating Officer P.S.I. Pardeshi that the said iron wire Article no.6 was compared with Article no.2 and both matched with each other cannot suffice the purpose and the said alleged matching of Article Nos. 2 and 6 was not done before the panchas and/or before any expert person in that respect and hence, even the said seizure of iron wire cannot be construed as ::: Downloaded on - 09/06/2013 14:51:28 ::: 22 incriminating circumstance against accused no.1 herein.
31 Moreover, there is no iota of evidence to prove and establish that accused nos. 1 and 2 tried to disappear the evidence with intention to screen themselves from legal punishment.
32 Having comprehensive view of the matter, it is amply clear that there are no incriminating circumstances proved and established by the prosecution by legal evidence and all the circumstances put together unerringly do not point towards the guilt of accused nos. 1 and 2.
33 In the said context, reliance can very well be placed in the following observations made in para 4 by the Honourable Apex Court in the case reported at AIR 1979 SC 1620, Lakhanpal vs The State of Madhya Pradesh [S.Murtaza Fazal Ali and A.D.Koshal, JJ.].
" So far as the first circumstance is concerned in the facts of this particular case it is not sufficient to prove conclusively that the appellant committed the murder of the deceased. According to P.W. Bhagwandas, the father of the appellant the sowing was stopped ::: Downloaded on - 09/06/2013 14:51:28 ::: 23 at 4 O'clock in the evening. In the circumstances, therefore, if the appellant would have attacked the deceased he being a young man of 17 years would have undoubtedly put up stiff resistance in order to protect himself and in all probability would have caused some injuries on the person of the appellant also. For these reasons, therefore, the mere fact that the appellant and the deceased were together in the field does not lead to the irresistible inference that the appellant must have murdered the deceased.
As regards the extra-judicial confession made by the appellant before Sukhlal, we are unable to believe the version given by the witness Sukhlal. While being examined as a witness in the Sessions Court he had clearly stated that no confession was made before him. His attention was however drawn to his statement made by him before the committing Magistrate where he had admitted that he saw the appellant running and on being questioned the appellant told him that he had committed a mistake and had killed his brother due to a quarrel. In cross-examination the witness admitted that he did not narrate this story of the murder to anybody. He made the disclosure for the first time when he was called to the police station. The witness met a number of persons on that day but he did not mention the factum of the confession to ::: Downloaded on - 09/06/2013 14:51:28 ::: 24 anyone of them. Secondly the evidence shows that he was not known to the appellant and therefore we find it difficult to believe that the appellant would make a confession to a person who was not known to him at all. For these reasons, therefore, we find it wholly unsafe to accept the evidence of the extra-judicial confession of the appellant to P.W. Sukhlal.
Another important circumstance which negatives the prosecution case is that no motive whatsoever for the appellant to kill his brother has been either alleged or proved.
Further the deceased appears to have received as many as 12 incised wounds on various parts of the body and this could not have been done by the appellant alone unless he was accompanied by other friends. We are clearly of the view that the prosecution has not proved the case against the appellant beyond reasonable doubt. "
34 Thus, after observing the demeanor of the witnesses and after assessing the evidence adduced and produced, the learned Trial Judge, arrived at the conclusion that the prosecution failed to prove the charges beyond reasonable doubt against accused nos. 1 and 2 and there is no incriminating circumstantial evidence to connect accused nos. 1 and 2 with the alleged guilt and observed that they are entitled for benefit of doubt and ::: Downloaded on - 09/06/2013 14:51:28 ::: 25 acquitted them from the charges levelled against them and after re-appreciating the evidence in the present appeal, we are of the view that the findings recorded by the learned Trial Judge are not unreasonable or perverse and the learned Trial Judge has not committed any serious error of law or that it is not so that the learned Trial Judge has recorded the finding in ignorance of relevant material on record and, therefore, there is no necessity to interfere therein in the present appeal.
35 In the said context, reliance can be very well placed on the following observations made in para no. 26 by the Honourable Apex Court in the case reported at 2003 AIR SCW 5713, State of Haryana and another vs Suba Singh [N.Santosh Hegde and B.P.Singh, JJ.].
" By its impugned judgment the High Court reversed the order of acquittal insofar as Shingara Singh, A-2 is concerned and convicted him of the offence under S. 302, I.P.C. It further convicted accused No.1-Suba Singh of the offence under S.302 read with S. 34, I.P.C. instead of S.304, Part I for which he was convicted by the trial Court. We are of the view that the High Court was not justified in setting aside the order of acquittal of A-2 under S.301, I.P.C. Having regard to the facts ::: Downloaded on - 09/06/2013 14:51:28 ::: 26 of the case. It is well settled that in an appeal against acquittal the High Court is entitled to re-appreciate the entire evidence on record but having done so if it finds that the view taken by the trial Court is a possible can be very well placed on the following observations made in para no. 26 by the Honourable Apex Court in the case reported at 2003 AIR SCW 5713, State of Haryana and another vs Suba Singh [N.Santosh ig Hegde and B.P.Singh, JJ.].reasonable view of the evidence on record, it will not substitute its opinion for that of the trial Court. Only in cases where the High Court finds that the findings recorded by the trial Court are unreasonable or perverse or that the Court has committed a serious error of law, or where the trial Court had recorded its findings in ignorance of relevant material on record or by taking into consideration evidence which is not admissible, the High Court may be justified in reversing the order of acquittal. We do not find this case to be one where the High Court was justified in reversing the findings recorded by the trial Court. At best, it may be contended that the view taken by the High Court is also a reasonable view of the evidence on record. However, we cannot say hat the view taken by the trial Court was not another reasonable view of the evidence on record. It is well settled that where two views are reasonably possible on the basis of the ::: Downloaded on - 09/06/2013 14:51:28 ::: 27 evidence on record, the one that favours the accused must be accepted. In any event in a case of acquittal if the view of the trial Court is a possible reasonable view of the evidence on record, interference by the High Court may not be justified. "
36 Reliance also can be placed on the following observations made in para no. 21 by the Honourable Apex Court in the case reported at 2003 AIR SCW 6731, Ramanand Yadav vs Prabhu Nath Jha and others [Doraiswamy Raju and Arijit Pasayat, JJ.] " There is no embargo on the appellant Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from ::: Downloaded on - 09/06/2013 14:51:28 ::: 28 acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh and others v. State of Madhya Pradesh (2002 (2) Supeme 567). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. "
37 In the result, we are of the considered view that the present appeal bears no substance and same is devoid of any merits and hence, same stands dismissed. The accused no.1 is already on bail and his bail bonds shall stand cancelled. However, accused no.2 was taken into custody while taking action under Section 390 of the Code of Criminal Procedure and she is in jail, hence, accused no.2 be released from jail forthwith, if not ::: Downloaded on - 09/06/2013 14:51:28 ::: 29 required in any other case.
(SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) ::: Downloaded on - 09/06/2013 14:51:28 :::