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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  547 OF 2007

Ganesh Shamrao Andekar & Anr. … Appellants

Versus

State of Maharashtra …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This  Appeal  is  directed  against  the  judgment  and  order

dated 20th February, 2007 passed by High Court of judicature at

Bombay, whereby Criminal Appeal No. 643 of 1989 filed by the

respondent-State was allowed, and the appellants are convicted

under Section 302 read with Section 34 of Indian Penal Code (for

brevity “I.P.C.”),  and each one of them has been sentenced to

imprisonment for life and to pay fine of 5,000/- in default of₹

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payment of which the defaulter convict is directed to undergo

further imprisonment for a period of one year.

2. Prosecution  story,  in  brief,  is  that  appellant  no.  2  and

deceased  were  neighbours  and  they  used  to  live  with  their

families in Guruwar Peth, Pune. There was enmity between the

two  families.   Earlier  also  a  criminal  case  was  filed  against

accused Shamrao Andekar (since died) and his brothers when

an attempt was made to commit murder of Raghunath (deceased

in  the  present  case).  In  this  background,  the  incident  in

question is  said to have taken place.  It  is  stated in the First

Information Report (Exh.-38) that on 14.10.1986 at about 3.00

p.m., Raghunath was taking rest on a cot outside of his door

when accused Shamrao Andekar came in a drunken condition

and started hurling filthy abuses at him. The deceased objected

to  the  behavior  of  the  said  accused,  and heated exchange  of

words started between the two. Meanwhile, appellants Ganesh

Andekar and Avinash Andekar (both sons of Shamrao Andekar)

and others also reached there. They were armed with weapons

and  attempted  to  assault  the  deceased.  On  this,  Raghunath

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started running to save his life and was chased by the accused

persons. They succeeded in catching Raghunath in Gadikhana

Chowk near Rajesh Boarding House. When the accused chased

the  deceased,  PW-2  Rohini  (daughter  of  the  deceased),  and

PW-13 Shakuntala (wife of the deceased) followed them. Ganesh

Andekar (appellant no. 1) stabbed the deceased on his stomach.

Appellant  no.  2  Avinash  Andekar  gave  a  blow  with  ‘Gupti’

(pointed sharp edged weapon) near groin area of the deceased.

Accused Vijay Ramchandra Yadav (since died), who was armed

with  sword,  and  other  accused  also  allegedly  assaulted  the

deceased. PW-2 Rohini in an attempt to save her father fell on

him  but  she  was  pushed  aside.  When  the  accused  left

Raghunath (believing him to have died), Rohini took her father

in an Auto rickshaw to Sassoon Hospital, Pune, in the injured

condition. According to prosecution, PW-3 Suresh Chavan was

the  Auto  rickshawala  who  helped  in  taking  the  injured  to

hospital.  PW-16 Dr. Shivram Waghmare gave medical aid to the

injured who succumbed to injuries at about 4.40 p.m. A report

(Exh.  38)  of  the incident was given by PW-2 Rohini  at  Police

Outpost,  Mithi  Ganj  against  the  four  appellants  and  others

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which  included  their  family  members.  The  said  report  was

forwarded from Outpost Mithi Ganj to Police Station, Khadak,

and a Crime No. 265 of 1986 was registered relating to offences

punishable under Sections 143, 147, 148, 149, 302 read with

Section 34 and 426 of I.P.C., on the same day at 6.30 p.m.  

3. PW-19 Suresh Suresh Kulkarni investigated the crime. He

got  inquest  report  prepared  through  Sub-Inspector  Lonakar.

Autopsy on the dead body was conducted by PW-18 Dr. Laxman

Pherwani  on  the  very  day  i.e.  14.10.1986  from 9.15  p.m.  to

10.15  p.m.   He  prepared  Post  Mortem  Examination  Report

(Exh.70).  On  completion  of  investigation,  the  Investigating

Officer submitted charge-sheet against fifteen accused, namely,

Ganesh Andekar, Shamrao Andekar, Avinash Andekar, Dinesh

Andekar,  Vijay  Ramchandra  Yadav,  Bhau  Mohol,  Vinayak

Kadam,  Shekhar  Vardekar,  Sathyabhama  Vardekar,  Laxmi

Indapurkar,  Rukmini  Indapurkar,  Kaml  Andekar,  Sangita

Vardekar, Pushpa Andekar and Gopinath Mane.  

4. The  case  appears  to  have  been  committed  by  the

Magistrate  to  Court  of  Session for  trial  after  giving necessary

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copies  to  the  accused.  On  26.04.1988,  Additional  Sessions

Judge, Pune, after hearing the parties framed charge in respect

of offence punishable under Sections 147, 148, 149, 302 read

with Section 34 and under Section 201 I.P.C. against all the 15

accused named above who pleaded not guilty and claimed to be

tried. On this, prosecution got examined PW-1 Ravindra, PW-2

Rohini (informant and eye witness), PW-3 Suresh (auto rickshaw

wala-eye witness), PW-4 Surkakant, PW-5 Iqbal Ahmed , PW-6

Shivaji  Jagtap,  PW-7  Sudhakar  Pardeshi,  PW-8  Sandip

Valsangkar,  PW-9  Rajendra  Lohokare,  PW-10  Vikas  Pawar,

PW-11  Malhari  Bhise,  PW-12  Rangnath  Jagtap,  PW-13

Shakuntala (widow of the deceased and eye wintness),  PW-14

Arun  Jadhav,  PW-15  Murlidhar  Wadkar,  PW-16  Dr.  Shivram

Waghmare, PW-17 Sunil Jagdale, PW-18 Dr. Laxman Pherwani

and PW-19 Suresh Kulkarni (Investigation Officer). The evidence

was put to the accused persons under Section 313 of Cr.P.C.

whereafter, in defence, DW-1 Rajnikant Nikam (a photographer)

was examined on behalf of the defence.

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5. Learned Additional Sessions Judge, Pune, after considering

the evidence on record, found that charge against the accused

persons is not proved beyond reasonable doubt, and accordingly

acquitted  all  the  fifteen accused vide  its  judgment  and order

dated 11.05.1989,  passed in Sessions Case No.  160 of  1987.

Aggrieved  by  the  order  passed  by  the  trial  court,  State  of

Maharashtra filed an appeal before the High Court.  The High

Court, after re-appreciating the evidence on record and hearing

the parties, found no infirmity in the finding of the trial court in

respect  of  accused  no.  4,  and  accused  nos.  7  to  15,  and

dismissed the appeal to that extent.  However,  the High Court

found that  trial  court has erred in law in acquitting the four

accused,  namely,  Ganesh  Andekar  (A-1),  Shamrao  Andekar

(A-2), Avinash Andekar (A-3) and Vijay Ramchandra Yadav (A-5).

The High Court convicted these four accused under Section 302

read with Section 34 I.P.C. and sentenced each one of them to

imprisonment for life and to pay fine of 5,000/- in default of₹

payment of which it  is directed that further imprisonment for

one year shall be served out.  Hence this appeal before us by the

four convicts.

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6. During  the  period  of  this  appeal,  appellant  Shamrao

Andekar  and  appellant  Vijay  Ramchandra  Yadav  reported  to

have died.  

7. We  have  heard  learned  counsel  for  the  appellants  and

learned counsel for the State and perused the record.

8. Before further discussion, it is just and proper to mention

the  ante  mortem  injuries  recorded  by  PW-18  Dr.  Laxman

Pherwani at the time of autopsy on the dead body of Raghunath.

The same are reproduced from autopsy report (Exh.70):

“1. An incised wound present on right iliac region 1” x ¼” going deep inside near the iliac crest.

2.  An incised wound present  on right  side  back of thigh 1 ¼” x ¼” muscle deep. Margins-Regular.  

3. An incised wound present on the back in the centre at level of thoracic 6. Margins-Regular.

4. An incised wound present in the centre of neck 1” x ¼”. Margins-Regular.

5. An incised wound right elbow inner aspect 1” x ¼”.

6. An incised wound left upper arm front aspect 1” x ¼” margins Regular.

7. An incised wound present in left axilla 1” x ¼”.

8. An incised wound left upper arm outer aspect 1” x ¼”.

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9. An incised wound ¾” x ¼” front on right temporal region of head.”

PW-18  Dr.  Laxman  Pherwani  in  his  oral  evidence  has

stated that the above mentioned ante mortem injuries were of

recent  origin  and  could  have  been  caused  by  sharp  edged

weapon.  He  further  stated  that  on  opening  the  body,

Haematoma on right temporal region was also found, and there

was  a  crack  fracture  on  right  temporal  region.  The  Medical

Officer  (PW-18)  has  opined  that  the  deceased  had  died  of

traumatic  and  haemerrahagic  shock  due  to  multiple  injuries.

This proves that Raghunath died a homicidal death.  PW-18 has

opined that  the  nine injuries  (quoted above)  could  have been

caused by the weapons like Sword, Knife, ‘Gupti’ and ‘Khukri’.

When the weapons seized during the investigation were shown

to  the  witness,  he  stated  that  the  injuries  could  have  been

caused with the same.

9. Now,  it  is  to  be  examined  as  to  whether  the  appellants

Ganesh Andekar and Avinash Andekar, with common intention,

have  committed  the  murder  of  Raghunath  as  suggested  by

prosecution and concluded by the High Court. It is also to be

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examined whether the finding of acquittal recorded by the trial

court relating to these appellants was against the weight of the

evidence of record, and it was not the reasonably possible view

considering the testimony of the eye witnesses.

10. On behalf of the appellants, Shri U. R. Lalit, learned senior

counsel took us through the First Information Report and the

prosecution  story  narrated  by  PW-2  Rohini  (informant-eye

witness)  and  PW-13  Shakuntala  (widow  of  the  deceased-eye

witness) and other evidence on record. It is contended before us

by Shri Lalit that it is unnatural that the two eye witnesses who

are ladies followed the deceased and the accused with the same

speed to witness the incident at Gadikhana Chowk. He further

pointed out that though PW-2 states that she took her injured

father  to  hospital  but  from the  entry  in  the  hospital  register

name of  one Rekha is mentioned as the person who got him

admitted. It is also submitted that the two eye witnesses have

stated  that  appellant  Avinash  Andekar  caused  injury  in  the

groin area of the deceased but the post mortem report does not

show injury over groin area. It is further submitted that had the

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incident  taken  place  in  the  manner  suggested  by  the

prosecution, the deceased would have rushed inside his house

instead of running towards Gadikhana Chowk.  It is argued that

since the deceased had many enemies, as such, commission of

murder by others cannot be ruled out. It is also pointed out that

no  specific  role  of  inflicting  injury  by  Avinash  Andekar  is

attributed to him, in the First Information Report. Lastly, it is

argued that since two views are possible from the evidence on

record, as such, the High Court erred in reversing the order of

acquittal recorded by the trial court.

11. No doubt, normally, where the trial court has acquitted the

accused  on  the  ground  that  charge  stood  not  proved  on  the

basis of evidence on record, and such view is reasonable,  the

High Court should not interfere with the same. However, such

general rule cannot be extended against the spirit of clause (a) of

Section  386  of  Code  of  Criminal  Procedure,  1973  which

empowers the appellate court to reverse the order of acquittal,

and pass  sentence  on him in accordance with  law.  In  Manu

Sharma Vs.  State of  Delhi  (2010)  6 SCC 1 (Para 27),  this

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court has held that following principles have to be kept in mind

by the appellate court while dealing with appeals, particularly

against the order of acquittal:

“(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.

(ii)  The  appellate  court  in  an  appeal  against acquittal can review the entire evidence and come to its own conclusions.

(iii)  The  appellate  court  can  also  review  the  trial court's  conclusion  with  respect  to  both  facts  and law.

(iv) While dealing with the appeal preferred by the State,  it  is  the  duty  of  the  appellate  court  to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when  there  are  “compelling  and  substantial reasons”  for  doing  so.  If  the  order  is  “clearly unreasonable”,  it  is  a  compelling  reason  for interference.

(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably  wrong,  manifestly  erroneous  or demonstrably unsustainable. If the appellate court answers  the  above  question  in  the  negative  the order of acquittal is not to be disturbed. Conversely, if  the  appellate  court  holds,  for  reasons  to  be

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recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can  reappraise  the  evidence  to  arrive  at  its  own conclusion.

(vii) When the trial court has ignored the evidence or misread  the  material  evidence  or  has  ignored material documents like dying declaration/report of ballistic  experts,  etc.  the  appellate  court  is competent to reverse the decision of the trial court depending on the materials placed.”

12. In  Murugesan Vs. State (2012)  10 SCC 383 (Para 34),

this Court has held that -

“34….a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise  of  such an opinion.  A view taken by  a court  lower  in  the  hierarchical  structure  may  be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by  the  subordinate  court  outside  the  arena  of  a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the  basis  of  what  the  superior  judicial  authority perceives to  be the correct  conclusion.  A possible view,  on  the  other  hand,  denotes  a  conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view  taken  by  the  trial  court  can  be  reasonably formed, regardless of whether the High Court agrees with the same or not,  the view taken by the trial court  cannot  be  interdicted  and  that  of  the  High

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Court  supplanted over  and above the  view of  the trial court.

13. In Bhagwan Singh and Others Vs. State of M.P. (2002)

4 SCC 85 (Para 7), this court has made following observation:

“7. We  do  not  agree  with  the  submissions  of  the learned  counsel  for  the  appellants  that  under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing  an  order  of  acquittal  the  presumption  of innocence  in  favour  of  the  accused  is  reinforced. The golden thread which runs through the web of administration of justice in criminal case 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. Such is not a jurisdiction limitation on the appellate court but Judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty  is  no  less  than  from  the  conviction  of  an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as

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to whether all or any of the accused has committed any offence or not…”

14. In the present case the High Court has given categorical

finding  that  the  finding  arrived  at  by  the  trial  court  was

perverse, as such, it cannot be said that the High Court could

not have taken the view supported by evidence on record.

15. So far as believing the testimony of PW-2 Rohini (daughter

of the deceased) and PW-13 Shakuntala (widow of the deceased)

is  concerned the same cannot  be doubted by presuming that

being women they could not have followed the deceased who was

running to save his life, and chased by the accused.  Both the

witnesses are adult, one aged twenty three years and another

aged forty  years.   The two witnesses have only  described the

blows inflicted in their  presence on the body of  the deceased

after they reached at the spot. It cannot be ignored that there

are nine incised wounds and only the incised wounds given in

the presence of  the eye witnesses by the two appellants have

been narrated by  them.  It  was a  day  light  incident  in  which

quarrel started in front of  the house of the deceased and the

presence of the two eye witnesses who are family members of the

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deceased  was  natural,  and  their  conduct  in  following  the

deceased and accused is also natural.  

16. So far as the argument raising possibility of commission of

murder by other than the accused mentioned in the F.I.R.  is

concerned,  that  would  be  a  mere  conjecture.   This  court  in

State of Punjab Vs. Karnail Singh (2003) 11 SCC 271 (Para

12), has held that the prosecution is not required to meet any

and every hypothesis put forward by the accused. It must grow

out of the evidence in the case. If a case is proved perfectly, it

can be argued that it is artificial, and where the case has some

flaws inevitable because human beings are prone to err,  it  is

argued that it is a doubtful story. Proof beyond reasonable doubt

is  a  guideline,  not  a  fetish.  A  judge  does  not  preside  over  a

criminal  trial  merely  to  see  that  that  no  innocent  man  is

punished. A judge also presides to see that a guilty man does

not escape. Both are public duties.

17. As to the truthfulness of  the fact that the deceased was

taken in the injured condition by PW-2 Rohini to hospital, the

same cannot be doubted only for the reason that name of one

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Rekha  is  mentioned  in  the  hospital  as  a  person  who  got

admitted  the  injured.  The  fact  relating  to  taking  deceased  to

hospital by PW-2 Rohini, is corroborated from the evidence on

record of PW-3 Suresh Chavan, Autorickshawala. In the present

case the First Information Report is prompt and even the post

mortem has been conducted on the same day after investigation

started.  Keeping these facts in mind as to who got admitted the

deceased is not of much relevance. It has been put to PW 19 by

the defence counsel in cross-examination that Rekha was sister

of Ashok Appa Kolekar (husband of PW 2 Rohini). The statement

of PW-16 Dr. Shivram Waghmare corroborates that the deceased

was brought to the hospital at 4.25 p.m. and died at 4.40 p.m.  

18. On behalf of the appellants, it is vehemently argued that

the eye witnesses have stated that appellant Avinash Andekar

inflicted blow in the groin area but there is no injury on said

part of the body. We have carefully scrutinized the evidence on

record and we do not find any reason to disbelieve the statement

of the two eye witnesses on the above ground for the reason that

a  living  human being  is  not  supported  to  remain  motionless

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while being inflicted with blow after blow.  If the injury is near

thigh or on the iliac crest, instead of groin area, in our opinion,

this is not sufficient to hold that the testimony of the witnesses

is  false.    It  is  also relevant  to mention here that  the ocular

evidence  of  PW  2  Rohini  and  PW  13  Shakuntala  is  further

corroborated  from  the  report  Ext.84  received  from  Forensic

Science Laboratory regarding the blood group ‘B+’ found on the

blood stained clothes  and earth sample collected.  The same

blood group was found on the blood stained weapons recovered

on disclosure made by the appellants.

19. For the reasons as discussed above, there is no error of law

committed by the High Court in re-appreciating the evidence on

record and coming to the conclusion that the view taken by the

trial  court  was  perverse  with  regard  to  the  four  accused.

Therefore, the appeal is liable to be dismissed. Accordingly, the

appeal of the appellants Ganesh Shamrao Andekar and Avinash

Shamrao Andekar is dismissed.  They are on bail.  They shall

surrender to serve out the sentence awarded by the High Court.

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The  appeal  of  the  appellant  Shamrao  Andekar  and  Vijay

Ramchandra Yadav stands abated.

………………………..…….J. [Prafulla C. Pant]

New Delhi; March 30, 2017.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 547 OF 2007

GANESH SHAMRAO ANDEKAR & ANR.   ...APPELLANTS

VERSUS

STATE OF MAHARASHTRA                 ...RESPONDENT

J U D G M E N T

R.F. Nariman, J.

1. I have read the draft judgment of my noble and learned brother

but for the reasons stated herein below find it difficult to agree with his

conclusion  that  the  High  Court  judgment  in  the  present  appeal  is

correct.

2. The facts have been set out in the aforesaid judgment.  It  has

been noticed that the trial court acquitted all the accused, whereas the

High Court  has partly reversed and convicted  the appellants under

Section 302 read with Section 34 of the Indian Penal Code.

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3. The trial  court  arrived at  the conclusion of  acquittal  on several

grounds:   

1) It clearly held that the prosecution has failed to establish and prove

the actual place where the deceased was assaulted – whether in

front of his house or at some distance at Gadikhana Chowk in front

of the Rajesh Boarding House.

2) The  trial  court  adverted  to  an  entry  made  in  the  Register

maintained in the hospital in which it  shows that the deceased

Raghunath was brought to the hospital  by one Rekha Kolekar.

This lady was not examined by the prosecution, and if the hospital

register is true, it falsifies the prosecution case that PW-2 Rohini

brought the deceased to the hospital.

3) A perusal of the FIR would show that the time at which it  was

recorded is not stated.  Further, there is no material on record to

show that the Investigating Officer had forwarded a copy of the

FIR  to  the  Magistrate  concerned  at  the  earliest  available

opportunity.

4) PW-2 Rohini specifically stated that she sustained abrasions on

her hands and legs in order to save her father. This is not proved

from  the  record,  and  would  therefore  cast  a  doubt  as  to  the

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veracity of her evidence.  

5) Most importantly, PW-3 Suresh Chavan, who is the Autorickshaw

driver  and  is  well  known  to  the  family  of  the  deceased,  has

specifically  stated  that  PW-2  Rohini  came  to  the  spot  of  the

incident only after the accused ran away from the spot, making it

clear that she was not an eye-witness as claimed.

6) PW-3 Suresh Chavan’s evidence also shows that the mother of

Rohini, PW-13, wife of the deceased was not at the scene of the

incident,  thereby  falsifying  PW-13’s  claim  that  she  was  an

eye-witness.

7) PW-3 Suresh Chavan has been disbelieved by both courts, i.e.

the trial court as well as the High Court, but was a key witness on

behalf  of the prosecution, as he was known to the deceased’s

family, and  drove  PW-2  Rohini  alongwith  the  deceased  to  the

hospital.

8) It is admitted that PW-3 Suresh Chavan and PW-2 Rohini, though

known  to  each  other,  did  not  exchange  a  single  word  in  the

autorickshaw while PW-2 Rohini and her father were driven to the

hospital,  thereby rendering improbable the autorickshaw ride to

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hospital, and consequently the evidence of PW-2 and PW-13 as a

whole.  9) One  Sudhakar,  who  was  a  friend  of  the  deceased,  was  also

examined as an eye-witness on behalf of the prosecution.  Being

an independent eye-witness, his testimony is of importance and

cannot be wished away.  He has turned hostile.  His son Vijay was

also  listed  in  the  chargesheet  as  a  witness  on  behalf  of  the

prosecution but not examined.

4. All these factors ultimately led the trial court to conclude:

“Normally there is no reason to disbelieve the version of the complainant,  but  in the present case, the relations between 2 families are strained, the evidence of PW. Rohini is  inconsistent  with that  of  PWs.  Suresh and Shakuntala. The evidence of these 3 witnesses besides interested in the case  of  prosecution  is  mutually  destructive  also  to  the prosecution case.  Therefore, cumulative effect of all these facts  is  that  no  reliance  can  be  placed  on  such  type  of witnesses  to  hold  the  accused  guilty  for  assault  on  the deceased.”    C

5. As against this, the High Court, in its judgment reversing the trial

court,  has  held  that  even  if  PW-3  Suresh  Chavan  is  not  found

trustworthy, the  court  cannot  throw out  the  entire  prosecution  case.

This is a little difficult to understand in view of the fact that PW-3 Suresh

Chavan is a key prosecution witness.  As he is a witness relied upon by

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the prosecution, his version destroys the version of the two interested

eye-witnesses PW-2 and PW-13 inasmuch as he specifically states that

neither  was  present  at  the  spot  when the  actual  assault  leading  to

murder took place.   

6. The High Court also wrongly states that mentioning of an injury at

the iliac region of Raghunath’s body gives strong credence to the story

of PW-2, which, according to the High Court, is an injury near the groin.

The High Court states that if Rohini had not witnessed the incident, she

would not be in a position to speak about this particular injury.   Here

again, the iliac region being a region at the backside, obviously, there

is, in fact, no injury near the groin.  

7. Turning to the fact that Rekha Kolekar is mentioned as the person

who brought the deceased to the hospital in the hospital register, the

High  Court  only  states  that  it  does  not  find  any  substance  in  this

contention because Rohini  and her  mother  are eye-witnesses.   This

does not answer unimpeachable documentary evidence in the form of

the hospital register entry, or the fact that Rekha was not examined by

the prosecution.

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8. On not sustaining abrasions on Rohini’s legs and hands, the High

Court only says witnesses do make exaggerations in such cases but

that cannot be a reason to disregard and disbelieve their entire story.

This again is hardly the way in which to deal with an appeal against

acquittal, where, unless perverse, the trial court judgment ought not to

be interfered with.

9. After going into the evidence of PW-13, who stated that Sudhakar

was present at the time of the assault, the High Court adverts to the fact

that Sudhakar, though an independent eye-witness, turned hostile, but

gives no importance to this fact.   In fact,  the High Court specifically

states:

“Most  of  the  other  witnesses  PW.7  eye  witness Sudhakar  Pardeshi,  P.W.  G.  Sandeep  Valsangkar,  P.W.9 Rajendra Lohokare Panch witness, P.W. 10 Vikas Pawar – Panch  witness  regarding  the  discovery  of  lungi  at  the instance of  accused No. 1.   Ganesh, have turned hostile and did not support the prosecution.”

10. The High Court is impressed by one fact and one fact only that

given the fact that the incident took place at around 3.30 P.M. to 4.30

P.M., and the fact that the FIR was lodged very soon thereafter, there

was no time to concoct a false story.   This is purely in the realm of

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conjecture.  Even if true, if so many other factors lead to a reasonable

doubt in the prosecution story, the accused deserve acquittal.   

11. The High Court  referred to the Chemical  Examiner’s Report  in

which it was stated that the blood group of Raghunath is ‘B’ and the

blood group of accused no.1 and accused no.3 is also ‘B’.  If that is so,

the fact that the earth, Rohini’s clothes, T-shirt and lungi, and weapons

all have blood group ‘B’, would not necessarily lead to the conclusion

that accused no.1 and accused no.3’s blood happens to be there given

the fact that Raghunath’s blood was also of blood group ‘B’.  In any

case, this factor alone cannot outweigh all the other factors pointed out

by the trial court.  

12. Having regard to the authorities cited by my noble and learned

brother, there is no doubt that there is no limitation on the part of the

appellate court to review the evidence upon which the order of acquittal

is founded and arrive at its own conclusion.  However, when an order of

acquittal is appealed against, it can only be interfered with when there

are compelling and substantial reasons for so doing and if it is found

that  the  trial  court  order  is  clearly  unreasonable,  palpably  wrong,

manifestly erroneous, or demonstrably unsustainable.  In my opinion,

the trial court order did not fall in any of these categories and the High

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Court in convicting the appellants and reversing a well reasoned order

of acquittal, has committed a grave error.   

13. Coming to accused no.3, in any case, as has been pointed out by

Shri Lalit, no active and specific role has been assigned to him in the

murder of Raghunath.  Given the fact that the FIR and the  evidence of

PW-2 to 13 (even as found by the High Court) contains many incorrect

facts, (for example, 6 ladies who were acquitted are also sought to be

roped  in),  and  given  the  fact  that  there  is  enmity  between  the

deceased’s family and the accused, it is reasonable to say that, in any

case, accused no. 3 should be given the benefit of doubt.  For all these

reasons, I would reverse the High Court judgment and acquit the two

accused before us.  

                  ………………………J.           (R.F. Nariman)

New Delhi; March 30, 2017.

PC:   In  view of  the disagreement  between us,  papers to be placed

before the Hon’ble Chief Justice of India to constitute an appropriate

bench to rehear the matter.