Bombay High Court
The State Of Maharashtra vs Baburao Tukaram Jadhav on 15 July, 1994
Equivalent citations: 1994(4)BOMCR522
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant aggrieved by the order dated 19-9-1990, passed by the Sessions Judge, Ratnagiri in Sessions Case No. 23 of 1990, acquitting the respondent under section 302 I.P.C., has come up in appeal before this Court.
2. The prosecution case in brief is as under :
The deceased Balaram Tukaram Jadhav was the real brother of respondent. The deceased, his brother Dashrath Jadhav P.W. 4 and the respondent were living in separate portions of the same house, in village Khatloli. In one portion of the house, deceased Balram and his wife Anita Balram Jadhav P.W. 2 were living. In another portion of the same house, P.W. 4 Dashrath Tukaram Jadhav and his wife Sangita Dashrath Jadhav P.W. 3 were living. The respondent is alleged to have been living along with his mother in the third portion of the house. On the night of 31-1-1990, there was a quarrel between the deceased Balram and his wife P.W. 2 Anita Jadhav. It is said that next morning, the respondent questioned Balram as to why he was abusing them. Balram is alleged to have replied that he was not abusing them but, was abusing his own wife. It is said that this infuriated the respondent so much that he threatened Balram with dire consequences.
3. On 1-2-1990, deceased Balram returned home after doing his work. After taking his food, he went out and thereafter, returned home at about 11 p.m. Thereafter, Balram along with his wife Anita, P.W. 2 two daughters and one son, slept in the oti. A lamp is alleged to have been burning there. At about midnight, it is said, that respondent came there and inflicted stick-blow on the head of Balram resulting in Anita waking up. Anita is said to have shouted hearing which, Dashrath P.W. 4 and his wife Sangita P.W. 3 are alleged to have come and seen the respondent coming out from the place of the incident and running away. It is also alleged by the prosecution that about 10 minutes later, respondent told Dashrath P.W. 4 that he killed Balram.
4. Next morning i.e. 2-2-1990, Anita Jadhav P.W. 2 by the first S.T. Bus went to Police Station Dapoli and at about 7 a.m. lodged her F.I.R. (complaint). In the aforesaid F.I.R. the respondent is named.
5. The post-mortem examination of the dead body of Balram Tukaram Jadhav was conducted on 2-2-1990 by P.W. 1 Dr. Prashant K. Mehta who found following injuries on the deceased :-
i) Skull : CLW just above left ear, 4" in length, bone underneath completely crushed, brain matter just below it completely crushed. Depth of wound is my right index finger.
ii) Brain : CLW over left parietal region, just 2" medial to injury No. 1, 3" x 1" bone below it is crushed.
iii) CLW in mid-line (on top of head) 6" x 1/2" bone below it is crushed.
In the opinion of the doctor, the deceased died on account of injury to vital organs like brain. The doctor also stated that these injuries were sufficient in the ordinary course of nature to cause his death.
6. After lodging of F.I.R., P.S.I. Krishna Vithoba Patil, P.W. 9 of Dapoli Police Station, arrested the respondent. Thereafter, he visited the place of incident and prepared panchanama of the same and that of the dead body of the deceased. He also took into possession blood-stained banian and chaddi of the respondent. Remaining investigation was done by P.W. 8 Dy. S.P. Anand Vyankatpati Mandya.
Same day, P.W. 8 Anand Mandya, D.S.P. interrogated eight witnesses under section 161 of the Criminal Procedure Code. The respondent is alleged to have made a statement to the effect that he could get the stick which he had been used in the incident recovered. Thereafter, respondent led P.W. 8 DYSP Anand Mandya and others to his house and from the roof of the pundal of the house, he took out a stick which was stained with blood.
The aforesaid articles namely stick recovered at the pointing out of respondent, the banian and chaddi of the respondent were sent to the Chemical Analyst.
After completing the investigation P.W. 8 DYSP Anand Mandya submitted charge-sheet (Exhibit 30) on 29-3-1990 in the Court of Judicial Magistrate, First Class, Dapoli. Thereafter the case was committed to the Court of Sessions.
7. In the trial Court, a charge under section 302 I.P.C. was framed against the respondent to which he pleaded not guilty. During trial, as many as 9 witnesses were examined by the prosecution which also tendered and proved various Exhibits. Out of these 9 witnesses, there is a solitary eye witness of the incident namely P.W. 2 Anita Jadhav. Defence of the respondent was that of denial. The learned Sessions Judge, Ratnagiri was of the opinion that prosecution had failed to bring home the guilt of the respondent beyond reasonable doubt, and consequently, passed the impugned order.
8. At the very outset, we may mention that we are seized of the matter in an appeal against acquittal. The scope of interference in an appeal against acquittal has been settled beyond any controversy by the Apex Court, in a catena of decisions. The position which has crystallised from the decisions of the Apex Court is that the High Court would only be justified in interfering with the order of acquittal if the same is either perverse or the appreciation of evidence is such which no reasonable person would reach or whether the view of acquittal is erroneous in law. It is well settled that the fact that the High Court by itself is inclined to take different view of evidence from that taken by the trial Court would be no ground for interfering with the view of acquittal. See Khedu Mohtan v. State of Bihar, and , Totaram & another v. State of Punjab. In addition to the aforesaid considerations which have to be consistently remembered by the appellate Court in an appeal against acquittal, it should always bear in mind that benefit of doubt should go to the accused persons see Sheo Swarup v. King Emperor.
9. Having thus laid down the norms which we would keep in mind in deciding an appeal from an order of acquittal, we now propose to examine as to whether the impugned order calls for any interference.
10. As said earlier, in the instant case, there is only one eye-witness namely P.W. 2 Anita Jadhav wife of deceased. In the F.I.R., she has categorically stated that the respondent only inflicted one stick blow on the person of the deceased. However, her aforesaid statement is falsified by the fact that the autopsy surgeon P.W. 1 Dr. P.K. Mehta found as many as 3 ante-mortem injuries on the person of the deceased. We have reproduced the aforesaid three injuries in the earlier part of our judgment, and hence, we are not reproducing them again. In his cross-examination, Dr. Mehta has admitted that these three injuries were caused as a result of three separate blows. The reasoning of the learned trial Judge is that this dichotomy between the version given by P.W. 2 Anita Jadhav and the number of injuries found on the person of the deceased by the autopsy surgeon shows that she did not see the incident. In our view, such a view is a very plausible and reasonable view. We agree with the learned Judge that had P.W. 2 Anita Jadhav been awake and seen the incident, then the aforesaid conflict between the version of the incident as given out by her in the F.I.R. and number of ante-mortem injuries found on the body of the deceased would not have been there.
Realising this apparent conflict between the recitals in the F.I.R. on the one hand and the post mortem report and the statement of P.W. 1 Dr. P.K. Mehta on the other hand, Anita Jadhav modulate her statement in the trial Court in terms of that a number of blows were given by respondent to the deceased. Since this modulation has been introduced with the express object of reconciling the dichotomy between the version of the assault as given in the F.I.R. and the medical evidence, we have no hesitation in rejecting the same. We are fortified in our view by the decision of the Apex Court reported in 1976 Cr.L.R. page 496 Badri and others appellant v. State of Rajashtan respondent, in the aforesaid case in paragraph 46, Their Lordships observed thus :--
"If a witness who is the only witness against the accused, to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony."
11. The aforesaid facts would show that P.W. 2 Anita Jadhav was sleeping when, someone assaulted her husband and ran away. Her claim that she saw the incident in our view has not been accepted for good reasons by the learned trial Judge. The learned trial Judge has given some other reasons also for not relying upon her testimony but, we do not want to increase the bulk of our judgment and hence are not mentioning them. The finding of the learned trial Judge that evidence of P.W. 2 Anita Jadhav is not worthy of being relied upon cannot be said to be unreasonable.
12. Shri Nalawade, learned Additional Public Prosecutor for the State of Maharashtra vehemently submitted that being a rustic lady, P.W. 2 Anita Jadhav could not understand the significance of the difference between one blow and a number of blows. We regret that we cannot accede to his contention for reasons more than one. In the first place, there is no evidence that she was a rustic lady. Even assuming that she was a rustic lady, in our opinion even rustic ladies know the difference between one blow and a number of blows. What Mr. Nalawade contended would have made some sense had she struck to the theory of the respondent giving one blow even in her statement in the trial Court. There she switched on to the theory that he gave a number of blows. Consequently, we reject the aforesaid contention of Mr. Nalawade.
13. The learned trial Judge has also taken the view that there was no light on the place of incident and that being so, neither P.W. 2 Anita Jadhav could have seen the respondent assaulting the deceased nor P.W. 3 Sangita and her husband P.W. 4 Dashrath could have seen the appellant running away from the place of the incident, immediately after the incident. In the instant case, the light alleged is as that of a lamp which is said to have been burning at the place where the deceased was sleeping. That lamp is said to have been seen by the Investigating Officer and he found neither any vick nor a drop of kerosene, in it. The learned trial Judge has taken the view that this shows that the aforesaid lamp must not have been burning when the incident took place and in our view that view cannot be said to be unreasonable.
14. Another reason for acquittal given by the learned trial Judge is that the ooti in which the deceased was sleeping according to the spot panchanama had a width of about 4 1/2 ft. The learned Judge has held that in as much as P.W. 4 Dashrath stated in para 14 that height of the deceased was about 5 1/2 ft. it was not possible for him to have slept in the ooti east-west. Therefore, the learned Judge doubted the prosecution case about the deceased sleeping in the ooti. Again, we cannot say that such a view of the learned Judge was unreasonable.
15. In the instant case, the prosecution also adduced some circumstantial evidence which also does not inspire confidence and thus has been rightly rejected by the learned trial Judge. We now propose dealing with it.
16. First circumstance, according to the prosecution is that P.W. 3 Sangita and her husband P.W. 4 Dashrath immediately after the incident saw the respondent coming out of the house of the deceased and running away. Once it is held that there was no light on the place of incident, it becomes doubtful as to how they could see the respondent running away. Secondly, had their statement that they saw the respondent running away been true, then there was no necessity of the respondent making an extra-judicial confession before them. Thirdly, the incident was of a hit and run type. Only three injuries were caused to the deceased at the dead of the night. It would not have taken more than a minute to cause them. P.W. 4 Dashrath stated that he and his wife Sangita woke up on the cries of P.W. 2 Anita and thereafter went to the place of the incident. In our opinion, by the time they must have reached the respondent must have run away.
17. The second circumstance is that within 10 minutes of the incident, the respondent is alleged to have made a extra-judicial confession before his own brother Dashrath P.W. 4 and Dashrath's wife Sangita P.W. 3. The learned trial Judge did not accept this piece of evidence because, the statements of these two witnesses were that they had seen the respondent coming out from the place of incident and running away. If that was so, the learned Judge felt there was no reason for the respondent to have made a extra judicial confession to them. Again such a view cannot be said to be unreasonable. Our experience is that extra judicial confessions are normally made by accused persons to persons in authority because they are in a position to help them. This cannot be said to be the case with P.W. 4 Dashrath and P.W. 3 Sangita. Consequently, we are not impressed by this circumstances.
In the trial Court, the suggestion of the defence was that Dashrath P.W. 4 and his wife have falsely deposed against the respondent because, once he is behind the bars, they would be able to grab all the property. Heaven alone knows that this may have motivated Sangita P.W. 3 and Dashrath P.W. 4 to depose against the respondent.
18. The last circumstance on which prosecution placed reliance was recovery of blood stained banian and chaddi from the respondent and that of a blood stained stick at the pointing out of the respondent. As far as recovery of stick is concerned, we find that the view of the learned trial Judge is that the place of recovery was accessible to all and could not be said to be in the exclusive possession of the respondent. Again such a view cannot be said to be unreasonable. The circumstances that blood-stained banian and chaddi was recovered from the respondent in our opinion, is highly suspicious. On the banian, blood has only been found on backside. The learned trial Judge felt that it was rather queer as to how during the course of the respondent assaulting the deceased blood only fell on the back portion of his banian and there was complete absence of it on the front portion of banian. Again such a view cannot be said to be unreasonable. What appears to us is that during investigation, the Investigating Officer put some blood of the deceased on the banian of the respondent. At any rate, in our opinion, this circumstance is not sufficient for the conviction of the respondent.
19. In our opinion, for the aforesaid reasons, neither the account given by the solitary eye witness P.W. 2 Anita Balram Jadhav is trust worthy nor the circumstantial evidence adduced by the prosecution inspires confidence.
20. It cannot be said that the view of acquittal taken by the trial Court was one which could not have been taken by it. In an appeal against acquittal, the angle of approach should not be as to whether the view taken should have been taken. The approach should be as to whether it could have been taken. In our view, the aforesaid view could have been taken.
21. In the result, we find no merit in this appeal and dismiss the same. The impugned order of acquittal of the respondent is confirmed. The respondent is in jail. He shall be released forthwith unless wanted in some other case. Office to comply with our orders forthwith.
Appeal dismissed.