1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 408 OF 2014

BHASKARRAO & ORS.      APPELLANTS

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

WITH

CRIMINAL APPEAL NO. 520 OF 2014

DILIP UTTAMRAO MANKAR & ANR.      APPELLANTS

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

CRIMINAL APPEAL NO. 1328 OF 2014

LAXMAN BHAURAO BHAGAT       APPELLANT

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

2

CRIMINAL APPEAL NO. 1228 OF 2014

BABARAO LAXMANRAO ADHAO      APPELLANT

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

CRIMINAL APPEAL NO. 1223 OF 2014

PRABHAKAR      APPELLANT

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

CRIMINAL APPEAL NO. 1229 OF 2014

MAROTI MAHADEORAO KOSARE      APPELLANT

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

CRIMINAL APPEAL NO. 1330 OF 2014

3

RAVINDRA & ANR.      APPELLANTS

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

CRIMINAL APPEAL NO. 1578 OF 2014

VISHNU BHARAO BHAGAT & ANR.      APPELLANTS

VERSUS

STATE OF MAHARASHTRA      RESPONDENT

JUDGMENT

N.V. RAMANA,  J.

1. These  appeals  arise  out  of the  common  judgment  and

order,  dated  21st  December,  2013,  passed  by the  High Court  of

Judicature at Bombay, Bench at Nagpur,  in Criminal Appeal No.

290 of 1998 whereby the High Court reversed the order of acquittal

passed by the Additional Sessions Judge, Amravati in Sessions Trial

No.  40 of  1995 and convicted  all the  accused/appellants  herein

except accused no. 6 (since dead) for the offence punishable under

4

Sections 147, 148, 452 read with Section 149, Section 302 read

with Section 149 and Section 506 of the Indian Penal Code (IPC).

2. The prosecution story in short is that, on 19th June, 1995

at about 7 pm, in the village Jalka Shahapur an altercation had

taken place between two villagers, namely Shamrao (deceased) and

Balya (Accused No. 4) on the road near a grocery shop over

repayment of Rs.50/­. It was alleged that Shamrao (deceased) had

slapped Balya (Accused No. 4) during the scuffle. After sometime,

all the sixteen accused persons armed with weapons, while entering

the house of Shamrao  hurling abuses, dragged  him out of the

house, assaulted on his hands and legs. They are alleged to have

continuously assaulted Shamrao while simultaneously dragging

him to a  field where they finally  cut his right palm and  left the

place. During the course of assault by the accused, Chanda (PW1)

[wife of Shamrao] followed them pleading not to hurt her husband

and out of fear she took shelter in some cattle shed. Later on she

went to the house of one Harshawardhan Bhalekar and informed

him about the incident. Then Harshawardhan Bhalekar along with

5

PW1 proceeded to Amravati and informed about the occurrence to

the family members of Shamrao. After that they went to the office of

Superintendent of Police, Amravati where they were advised to lodge

a complaint at Nandgaon Peth police station. Accordingly, a

complaint (Ext. 55) was lodged on 20th June, 1995 being crime case

No. 72 of 1995. It may be relevant to reduce a part of the FIR as

under­

Name and addresses of accused, if any

:      1. Gajanan Chincholkar        2. Balya Bhagat        3. Pramod Khedkar        4. Raju Mohol           +20 to 25 persons

Names and addresses of suspects

:

Nature  of  offence with penal section. Give short descriptions of stolen property with its value if any.

The incident is that on the above dt. Time and place, when the husband of the complainant was  in the home, when he went to the house of Balya Bhagat out of the accused persons herein for demanding the money of fishes, the accused persons came to the house of the husband of the accused and the accused persons have beaten and pulled from the house and on account of the said occurrence, the offence is registered and taken

:

6

for investigation.

3. Dattatray Kulkarni, A.P.I. (PW17) took up the

investigation and carried a search for missing Shamrao in the Jalka

Shahapur village and ultimately on 21st  June, 1995 on the

information of one Ananda Bhurbhure, PW1 and PW17 found the

dead  body of Shamrao, in the fields of one  Yeshwant  Thawale,

without his right palm which they traced at some distance. After

conducting the panchanama of scene of occurrence, inquest report

was drawn, clothes of the deceased were seized, statements of some

witnesses were recorded and the dead body was sent to the Civil

Surgeon at Amravati for postmortem. All the accused, except

accused no. 16 who was stated to be absconding, were arrested and

at their instance, alleged weapons used for the crime were

recovered, disclosure statements recorded, seizure panchanama

recorded and the accused were got medically examined. After

completion of  investigation, charges were framed against accused

nos. 1 to 15 to which the accused pleaded not guilty and claimed

trial.

7

4. In its effort to prove the guilt of the accused, prosecution

has examined as many as 19 witnesses. Learned trial Judge after

conducting  a full fledged trial, came to the conclusion that the

prosecution has failed to establish the guilt of the accused beyond

reasonable  doubt, therefore,  all the  accused,  against  whom trial

was conducted (accused nos. 1 to 15), were acquitted of the offences

they  were charged  with.  Accused  No. 16,  who  was absconding,

came to be arrested at the end of trial.  Hence, the trial court

directed separate trial against him.

5. Aggrieved by  the order  of  acquittal  passed by the trial

court, the  State  of  Maharashtra  went in  appeal  before the  High

Court. During the pendency of the appeal, before the High Court,

Accused No. 6 expired. The High Court found fault with the

acquittal order passed by the trial court and by its judgment which

is impugned herein, convicted all the accused before it except

accused No. 6, for the offence punishable under Sections 147, 148,

452 read with Section 149, Section 302 read with Section 149 and

Section 506, IPC. They were sentenced to undergo imprisonment for

8

a period of two years for the offence punishable under Sections 147,

148 and 452, IPC. Whereas for the offence punishable under

Section  302  read  with  Section  149, IPC they  were  sentenced to

suffer imprisonment for life and to pay a fine of Rs.5,000/­ each, in

default, to further suffer imprisonment for one year. They were also

sentenced to suffer imprisonment for a period of six months and to

pay a fine of Rs.500/­ each, in default, to further suffer a period of

one month imprisonment for the offence under Section 506, IPC.

However, all the sentences were directed to run concurrently.

6. Dissatisfied with the judgment of the High Court in

reversing the order of acquittal, the Accused Nos. 1 to 5 and 7 to 14

are before us in these appeals assailing the judgment of the High

Court. It appears that Accused No. 15, Gajanan Pandurang

Chincholkar, has not preferred an appeal against the judgment of

the High Court.

7. It  may  be beneficial to note that the accused  Nos. 1

(Motiram) and 3 (Ravindra) have filed Criminal Appeal No. 1330 of

9

2014, Accused Nos. 2 (Bhaskarrao), 9 (Maroti Bhaskarrao Bhagat)

and 10 (Bhagwat Bhaurao Bhagat) have filed Criminal Appeal No.

408 of 2014, Accused Nos. 4 (Balya) and 5 (Vishnu Bharao Bhagat)

have filed Criminal Appeal No. 1578 of 2014, Accused No. 7 (Maroti

Mahadeorao Kosare) has filed Criminal Appeal No. 1229 of 2014,

Accused No. 8 (Laxman Bhaurao Bhagat) has filed Criminal Appeal

1328 of 2014, Accused No. 11 (Prabhakar Narsaji Bhagat) has filed

Criminal Appeal No. 1223 of 2014, Accused No. 12 (Babarao

Laxmanrao Adhao) has filed Criminal Appeal No. 1228 of 2014 and

Accused Nos. 13 (Dilip Uttamrao Mankur) and 14 (Pramod Devidas

Khedkar) have filed Criminal Appeal No. 520 of 2014.  

8. On behalf of Accused No. 8, the arguments were

advanced by Mr. V.V.S. Rao, learned senior counsel. Ms. Anagha S.

Desai, learned counsel has argued on behalf of Accused Nos. 2, 7, 9

and 10 to 14, while Mr. Dharmendra Kumar Sinha, learned counsel

made submissions in respect of Accused Nos. 1, 3, 4 and 5. Having

heard the arguments advanced by the respective counsel,  as the

10

order impugned is one and the same, we proceed to deal with all

these appeals by a common judgment.

9. It is the case of the appellants—accused that the entire

prosecution story has been concocted to falsely implicate the

innocent appellants and is not based on the true facts and

circumstances. That there were several  lapses in the prosecution

theory. That the dead body of the deceased was found in a field

which is about two kms away from the house of the deceased, and

there is  no eyewitness to the  factum of  accused committing the

murder of deceased. His amputated palm was found at some

distance to his dead body, but there was no evidence on record as

to who cut the palm of the deceased. There were also no bloodstains

on any weapon alleged to have been recovered by the investigating

authorities at the instance of accused. All the prosecution witnesses

are inter­related and there was no independent witness to support

the prosecution case. The trial  Court has rightly discarded the

evidence of interested witnesses.

11

10. It is also argued that the prosecution has improvised the

circumstances from the stage of  lodging FIR to the conclusion of

trial. In the FIR, there was no mention about the alleged quarrel

that took place between the deceased and Accused No. 4 over a

matter of Rs.50/­ near a grocery shop. PW1 (wife of the deceased)

introduced the story later on. The owner of the grocery shop was

not examined as a witness whose evidence would be crucial to prove

that a quarrel has taken place which is the whole basis or

provocation for the incident. It was also alleged that there were two

other witnesses namely Charandas and Anant, but they too were

not examined by the prosecution. In the FIR, the names of accused

were specified  as only four persons, but  16  persons  have been

dragged into the case as accused. The statements of  witnesses

varied as to the presence of the accused at the time of occurrence

and their  depositions  are quite contradictory to the  prosecution

case. There was also no test identification parade conducted and all

the accused persons are not familiar to the witnesses. The evidence

of prosecution witnesses is unbelievable inasmuch as the allegation

was that the deceased was dragged on the ground for about 2 kms

12

from his house to the place where his dead body was found, even

then there were no injury marks on the body of the deceased.   

11. It is further submitted by the learned counsel that the

High Court failed to take into consideration the crucial facts that no

test identification parade was conducted, no motive was

established, no injuries on vital parts of the deceased were noted,

and above all medical evidence did not corroborate with the alleged

ocular evidence. The High Court has also failed to take note of the

fact that the trial Court has not committed any legal error in

appreciating the ocular and medical evidence to reach at the

conclusion that the accused are innocent. The law is well settled by

this Court with regard to fresh appreciation of evidence in an appeal

against acquittal that even if on the basis of evidence, there is a

possibility of taking a different view than that of the trial Court, the

appellate  Court should refrain from disturbing the findings  and

conclusion recorded by the lower court. In view of the settled law,

the High Court ought not have interfered with the order of acquittal

passed by the trial Court. But by setting aside the order of acquittal

13

passed by the trial Court, the High Court has committed a gross

illegality by convicted the appellants—accused thereby causing

miscarriage of  justice which  invites  interference of this Court. In

support of their arguments learned counsel appearing for the

accused—appellants relied on the judgments of this Court in

Mahavir Singh vs. State of Madhya Pradesh, (2016) 10 SCC 220,

L.L.  Kale  Vs.  State of Maharashtra & Ors.  (2000)  1 SCC 295,

Joginder Singh & Anr. Vs. State of Haryana (2010) 15 SCC 407

and Nankaunoo Vs. State of U.P. (2016) 3 SCC 317.

12. On  the  other  hand, learned  counsel  appearing for the

State—Mr. Nishant Ramakantrao Katneshwarkar, supported the

impugned judgment and submitted that the learned trial Judge

disbelieved the evidence of prosecution witnesses for no valid and

reasonable cause. The minor discrepancies in the depositions have

been given undue importance to pass the acquittal order against

the accused, who in a brutal manner dragged the deceased to the

fields and assaulted him with sticks, axe and sword. PW1—Chanda,

wife of the deceased, tried her best to save her husband praying at

14

the accused to show mercy, but all the accused in pursuance of

their common object, attacked the deceased indiscriminately

leading  to  his  death.  The High Court  has correctly  assessed the

facts and circumstances of the case and there was no legal error in

the impugned order seeking indulgence of this Court.

13. We have given our consideration to the material placed

before us and the arguments advanced by the learned counsel on

either side.  

14.  As the trial court and High Court, having appreciated the

evidence on record, has come to diametrically opposite conclusions,

mandating herein to observe certain witness statements which may

have an important bearing in this case. In the processes of

appreciating the evidence at the appellate stage, we need to keep in

mind the views of this court as expressed in Tota Singh and Anr.

v. State of Punjab, 1987 CriLJ 974 ­

"The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of PW2 and PW6 were either

15

unreasonable or perverse. What the High Court has done is to  make  an independent reappraisal  of the evidence on its own  and to set aside the  acquittal merely  on the  ground that as  a result of such re­ appreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned  Sessions Judge. This Court has repeatedly pointed out that  the mere fact that the Appellate Court is inclined on a re­appreciation of the evidence to reach a conclusion which is at variance  with  the  one  recorded  in the  order  of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal.  The jurisdiction of the Appellate Court in dealing with an appeal against an order  of  acquittal is  circumscribed by the  limitation that no interference is to be made with the order of acquittal unless the approach  made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and  is, therefore, liable to  be characterised  as perverse.  Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is plausible one, the  Appellate  Court  cannot legally interfere  with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous."

16

15. In  Ramesh Babulal Doshi  v.  State of Gujarat,  1996

CriLJ 2867, this Court observed:

“This Court has repeatedly  laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the 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.”

16.  Keeping the aforesaid observations in mind, we may note

some statements of the witnesses, who have deposed before the trial

court concerning the incident.  PW­1 [wife of the  deceased],  has

deposed that she came to know about the scuffle, from her

husband,  which took  place  between  her  deceased  husband  and

accused no. 4 prior to the occurrence of the incident. She further

stated that  while she  was cooking the  dinner for  her  husband,

17

accused no. 4, 11, 12, 13, 14, 15 and absconding accused (Raju)

entered her house. The accused dragged her husband outside onto

the courtyard. She states that she saw accused no. 11 was armed

with an axe, accused no. 13 was armed with a sword and accused

no. 16 was holding an iron pipe. She further states that rest of the

accused were armed with sticks and in total there were 15

assailants. Her husband was dragged to the courtyard of Vinayak

Bhalekar, whose house is said to be after three to four houses. At

that spot, they  again  gave some  beating to the  deceased.  PW­1

states that she was continuously requesting the assailants to spare

the life of her husband. At this instant, accused no. 11 is said to

have threatened PW­1 so that she may not witness the incident.

Accordingly, she ran to the cattle shed of one Sudha Bhalekar, who

was attacked by accused no. 14 in the meantime, and remained

hidden for about two hours out of fear. Thereafter, PW­1 went to the

house of Harshwardhan Balekar, who first accompanied her to the

district head­quarters at Amravati, wherein she informed the family

of the deceased (parents­in­law and the brother­in­law) and

thereafter went to the Amravati police station. As they were advised

18

to register the case in Nandgaon Police Station, they came back to

Nandgaon police station to register the complaint.

17.  During the cross­examination she avers that PW­3, 4 and

5 were closely related to her and the accused were also related inter

se. Concerning the relationship between the accused no. 4 and the

deceased, she states that the relationship between them were

cordial. Lastly, she could  not assign  any reason  as to  why the

earlier scuffle between her deceased husband and accused no. 4

was not written in the FIR registered by her.

18.  PW­2 avers that on the day of the incident, while he was

watching television from inside the house, he heard some

commotion taking place outside his house. When he went outside

the house, he saw that the accused were beating the deceased with

weapons such as axe, pipe, swords and stick. he states that he saw

accused no. 11 armed with an axe, accused no. 4 armed with a

bamboo stick, accused no. 13 armed with a sword and accused no.

16 was holding an iron pipe. As he was afraid, he did not go behind

19

the assailants. During the cross examination, he avers that there

might have been more than twenty persons.

19.  PW­3, states that he saw the accused giving severe

beating to the deceased with sticks, swords, iron pipes and axe. He

states that he saw accused no. 16, 15 and 11 dragging the deceased

towards the school and he did not follow the accused out of the fear

and on the following day, deceased body was found in the field of

one Yeshwant Sawai. During the cross examination, he states that

the deceased died in front of his house, due to severe beating given

by the accused.  Moreover, he admits that the deceased is his

relative.

20.  It may be noted that PW­4 and 5 have deposed to the

same effect,  concerning the incident.  They have  further admitted

that they  were related to the  deceased.  At this  point it  may  be

relevant to notice the witness statement of the doctor, who

conducted the post­mortem [PW­7]. Concerning the stick blows on

the body of the deceased, she notes as under­

20

‘…Contusions and lacerations are possible in case a person is beaten by sticks or from pipe. I did not find any lacerated wound or contusion sustained by the deceased and as such I did not mention such injury in P.M. Note….’

Concerning the cause of death, PW­7 states as under­

‘The injury sternum as described in Column No. 20 is possible in case a person fall down on hard surface. Because of loss of blood due to injury the deceased went into the shock and which resulted in his death. The deceased died due to loss of blood. Because of  loss of blood the heart chambers were found empty and other organs  were found pale. Vital organs were intact. I did not find any injury to any vital  part  of  the body.  Loss of blood is gradually loss of blood and it  may take some time. In case of timely medical treatment person may survive. Hands and legs are non­vital part of the body. Because of the amputation of hand and because of  amputation of leg  or both person may not die. It is not always possible that a person may die because of incised  wounds  No. 1, 2  & 5 as described in Coloum No. 17’ [sic.]

[emphasis supplied]

21. PW­10 was stationed as the head constable of Nandgaon

police station at the relevant time when PW­1 registered the

21

complaint. It  may be beneficial  for the discussion to observe the

cross examination of the aforesaid witness, as under­

…3. The complainant PW1­Chanda did not state in her complaint the fact that Accused No.4 addressed abuses to her husband when her husband  demanded  money to  Accused  No.4. The PW1­Chanda did not state in her complaint the fact that Accused No.13 and Accused No.15 arrived and they entered into her house. PW1­Chanda did not state in her complaint the fact that she requested the assailants not to beat her husband. The PW1­ Chanda did not state in her report Exh. 55 the fact that Accused No.11 was armed with an axe, PW1­ Chanda did not state in her report Exh. 55 the fact that the Accused No.13  was holding sword. The PW1­Chanda did not state in her report Exh.55 the fact that Accused No. 15 was holding a pipe. The PW1­Chanda did not state in her report Exh.55 the fact that the rest of the  Assailants­Accused  were holding sticks in their hands. PW1­Chanda did not state in her complaint Exh.55 the fact that the Accused­Assailants had beaten to her husband shamrao in the courtyard….

From the aforesaid witness, it is clear that the FIR did not consist of

all those facts  which  were subsequently deposed by PW­1 and

others before the court.

22

22.  It may not be out of context to mention that the formal

witnesses concerning seizure such as PW11 and 13 have not

supported the case of prosecution in entirety.

23.  Before we proceed to analysis of the case, we must first

focus on the aspect concerning the standard the High Court has to

apply, while hearing a case against an acquittal order of the trial

court. In the case on hand, the trial court, followed by a full­fledged

trial, comes to the conclusion and by cogent reasoning acquits the

accused. In such a case the appellate Court  is  further burdened

with the task of reaffirming the innocence of the accused. In such

cases, the appellate Court is expected to be very cautious and its

interference with the order of acquittal is called for only when there

are compelling reasons and substantial  grounds. In other words,

the High Court has full power to review the evidence upon which an

order of acquittal is founded, yet the presumption of innocence of

the accused being further reinforced by his acquittal by the trial

Court, the findings of that Court which had the advantage of seeing

the witnesses and hearing their evidence can be reversed only for

23

very substantial and compelling reasons [refer Surajpal Singh &

Ors. v. The State, 1952 CriLJ 331].

24. From the facts and circumstances of  this case, we are

called upon to examine, whether the High Court was justified in

upsetting the findings  of the trial  court  and whether there were

compelling reasons for the  High Court to  set  aside the  order  of

acquittal and convict the accused appellant of  culpable homicide

amounting to murder?

25.  We may note that out of eleven circumstances which the

trial court has relied upon to find that the prosecution case was not

proved beyond reasonable doubt, we are of the opinion that we need

to concentrate on four of those circumstance, which may be

sufficient, to portray that the case at hand is not proved beyond

reasonable doubt.  

26.  There is no dispute as to the fact that the prosecution

relies on the circumstantial evidence to prove the case. It may be

24

noted that, the value of circumstantial evidence rests in its

accumulative effect, that is to say, while a single piece of

circumstantial evidence  may only  slightly increase the likelihood

that the accused is guilty, several such evidences taken together

may carry enough probative force to justify the conviction, if such

circumstantial evidence forms an unbroken chain of events

resulting in only one hypothesis so canvassed.   

27.  Coming back to the appreciation of the evidence at hand,

at the outset, our attention is drawn to the fact that the witnesses

were inter­related, and this court should be cautious in accepting

their statements. It  would be beneficial to recapitulate the law

concerning the appreciation of evidence of related witness. In Dalip

Singh & Ors. v. State of Punjab, (1954) 1 SCR 145, J. Vivian Bose

for the bench observed the law as under­

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.

25

Ordinarily, a close relative  would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be  laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation.  Each  case  must  be judged  on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

28.  In  Masalti v. State of U.P., (1964) 8 SCR 133, a five­

Judge Bench of this Court has categorically observed as under­

There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all  matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of

26

enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

(emphasis supplied)

29.  In Darya Singh and Ors. v. State of Punjab, (1964) 3

SCR 397, this Court held that evidence of an eye witness who is a

near relative  of the  victim,  should be  closely  scrutinized but  no

corroboration is necessary for acceptance of his evidence. In

Harbans Kaur & Anr. v. State of Haryana,  2005 CriLJ 2199,

this Court observed that­

There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.

27

30.  The last case we need to concern ourselves is the case of

Namdeo v. State of Maharashtra, (2007) 14 SCC 150, wherein

this Court after observing previous precedents has summarized the

law in the following manner­

It is clear that a close relative cannot be characterised as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized  carefully. If on  such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy conviction can be based on the 'sole' testimony of such witness. Close relationship of  witness  with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real  culprit  and falsely  implicate an  innocent one.

31. From the study of the aforesaid precedents of this court,

we may note that whoever has been a witness before the court of

law, having a strong interest in result, if allowed to be weighed in

the same scales with those who do not have any interest  in the

result, would be to open the doors of the court for perverted truth.

This sound rule  which remain the  bulwark  of this  system,  and

which determines the value of evidence derived from such sources,

28

needs to be cautiously and carefully observed and enforced. There

is no dispute about the fact that the interest of the witness must

affect his testimony is a universal truth. Moreover, under the

influence of bias, a man may not be in a position to judge correctly,

even if they earnestly desire to do so. Similarly, he may not be in a

position to provide evidence in an impartial manner, when it

involves his interest. Under such influences, man will, even though

not consciously, suppress some facts, soften or modify others, and

provide favorable color. These are most controlling considerations in

respect to the credibility of human testimony, and should never to

be overlooked in applying the rules of evidence and determining its

weight in the scale of truth under the facts and circumstances of

each case.

32. The prosecution has heavily relied on the statement of

PW1 that the accused—appellants assaulted her husband  with

deadly weapons on his hands and legs while dragging him for about

2 kms from his house to the fields, which led to his death. The

weapons used in the crime were stated to be sword, sticks, axe and

29

pipe.  Admittedly, there were no bloodstains  found on any of the

weapons allegedly recovered from the accused. The allegation

particularly levelled was that the accused carried the assault on the

deceased at three places i.e., in front of the house of the deceased

and near the house of PW3—Vinayak Bhalekar and at the fields of

Yeshwant Thawale. However, in their depositions PWs 2, 4 and 5

did not mention about such assault  on the deceased  in  front of

Vinayak Bhalekar house. It appears from the material that there are

no eyewitness who had seen the accused attacking the deceased in

the fields of Yashwant Thawale. The statements of PW3—Vinayak

Bhalekar also appears to be not consistent throughout. At one point

of time,  he  deposed that the  deceased  had  died in front  of  his

house. Altogether a different statement was given to the

investigating authorities and  in the Court.  Similar  is the case of

PW4—Sudha, who has made improvements as regards to the

assault on the deceased. Also there were varying statements by the

prosecution  witnesses  as regards  PW4—Sudha  on the  aspect of

receiving the blow.  

30

33. The deposition of PW4—Sudha Bhalekar shows that she

had seen the involvement of A­1, A­4, A­11, A­13, A­14 and A­16 in

the crime. Though she stated that she could recognize the

assailants by their face as she does not know their names, yet test

identification parade was not conducted which is fatal to the case of

prosecution. In their depositions PWs 2, 3 and 5 gave contradictory

statements as to the involvement of number of accused persons in

the  crime and also  about noticing  the accused who dragged the

deceased while assaulting him and dragging towards school

whereas PWs 1 and 4 were silent on this aspect. There were also

contradictory statements by prosecution witnesses as regards the

availability of light at the time of occurrence.   According to PW3—

Vinayak, husband of PW4—Sudha, whose house is the last in the

mohalla and situated at a distance of four other houses from the

house of deceased, the incident took place at 9 pm. The way behind

his house goes to the school and there is a tamarind tree in front of

his house and the house of Shamrao is not visible by sitting in the

courtyard of his house. In his cross­examination, he denied to have

deposed to police that the house of deceased Shamrao is situated in

31

the rear side of his house. He further stated, there is ‘L’ type turn

from his house to the house of deceased which is not visible from

his courtyard. According to him, deceased Shamrao died in front of

his house and on the next day, he saw the dead body of Shamrao in

the field.

34.   Now coming to the  facts of the case,  PW1 (wife of the

deceased) has not witnessed the chopping of the hand, which

resulted in the ultimate death of her husband. It is prudent for this

Court to not believe in absence of cogent evidence concerning the

culpability of the accused herein,  as her evidence  is ridden with

apparent internal contradictions and inconsistencies.

35. Due to the nature and quality of evidence involved in this

case, the prosecution relies on the motive to strengthen the case by

bringing in the earlier scuffle,  wherein the deceased had slapped

the Accused no.  4.  This  Court  has on number of  occasions has

expressed a general disdain towards  motive in direct evidence

cases1. On the other hand this Court has never approved the

1 Hari Shanker Vs. State of U.P., (1996) 9 SCC 40.

32

extreme position as portrayed in some English cases2 which is best

explained by Jerome Hall, when he stated ‘[h]ardly any part of penal

law is more definitely settled than that motive is irrelevant’.3 We may

note that the law  in India is  now well  settled that in  a  case  of

circumstantial evidence, motive has a role to play4, but to dislodge

prosecution’s case solely based on lack of motive would amount to

giving credit to this factor, where it is not due.5 The motive behind

the  accused assaulting the  deceased was said to  be the  quarrel

during  which the deceased  had slapped  Accused  No. 4 near a

grocery shop in the village. Incidentally, prosecution could also not

prove the same by examining the independent witness present at

the grocery shop, though as many as 19 witnesses were examined

by the prosecution. PW10—Shrikrishna, Head Constable of the PS

Nandgaon Peth who reduced the oral complaint of PW1 into writing,

categorically stated that PW1 had also not mentioned about

previous quarrel at the time of  lodging of complaint. There were,

undoubtedly lot of improvements in the statement of PW1 from the

2 Chandler v. DPP, [1964] AC 763 3 Jerome Hall, General Principles of Criminal Law 88 (2d ed. 1960). 4 Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90) and State of  U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73. 5 Bipin Kumar Mondal v. State of West Bengal, (2010) 12 SCC 91.

33

stage of complaint to her examination­in­chief.   Moreover, the

evidence of PW1 concerning the quarrel is barred for being hearsay

evidence.  

36. Alternatively, the prosecution has alleged that motive for

the crime was that the accused party belongs to non­SC/ST

community  whereas the victim was belonging  to  SC community.

But, in the opinion of  the trial  Court,  the prosecution could not

prove that the deceased belong to Scheduled Caste and accused

were from non­Scheduled Caste or Tribe and the prosecution has

failed to prove any charge against the accused including the charge

under Section 3(i)(x) and 2(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act. As against that

charge, the High Court also confirmed the view taken by the trial

Court, which in other words proved the prosecution version to be

wrong.

37. Now we need to concentrate on the other aspects of the

case such as the contradictions in the evidence of prosecution

34

witnesses  as to the  number  of accused  persons involved in the

alleged crime and also in respect of their identification thereby the

very purpose of the prosecution in proving the common object of

unlawful assembly gets defeated to attract the provisions of Section

149, IPC. An accused is, of course, vicariously guilty of the offence

even if he is not directly indulged in the commission of offence but

committed by other accused, in case he is proved to be a member of

unlawful assembly sharing its common object.  It is evident that as

per PW1 (wife of the deceased)—complainant, in the FIR (Ext. 55)

the number of persons mentioned by her, who have entered into

their house was four, while about 20 to 25 persons were assembled

outside the house and all of them assaulted the deceased. However,

in the examination­in­chief she deposed that there were in all 15

assailants who attacked her husband. Though she failed to name

the assailants in her deposition she made out a point that she knew

all the assailants. According to PW10—Shrikrishna, the author of

complaint, PW1 did not state about entry of accused Nos. 13 and 15

into her house. There was also no mention by her at the time of

lodging of FIR about carrying an axe by A­11, a sword by A­13, a

35

pipe by A­15 and sticks by other accused. Going by the material on

record, it can be said that there was no satisfactory explanation on

the part of PW1 for omissions in the FIR and improvements before

the Court.

38. PW11—Sagar, a panch witness of seizure of bloodstained

clothes of the accused Nos. 1 to 7, did not support the prosecution

case. According to him, police called him to the police station and

obtained his signature. Similarly, the seizure is doubtful in the case

of clothes pertaining to accused No. 11 to which PW13—Gunwant

was witness who stated that he had seen those clothes for the first

time in the village panchayat office and he had signed the paper at

the instance of police without knowing the correctness of its

contents. Going by the material on record, the correctness of

seizure of clothes of other accused  persons  also  do  not inspire

confidence.  

39. It is also clear from the record that PW6—Sukhdev who

proved the recovery of weapons at the instance of accused—

36

appellants, could not point out  his signature on the respective

disclosure statements and seizure panchnamas. He also admitted

that Ext.72 (memorandum) and Ext. 73 (seizure panchnama) does

not bear his signature. PW9—Ananda Ramteke deposed that after

recovering sticks from  the  houses  of accused  Nos.  1 to  7, they

returned to the village panchayat office where almost all the papers

were scribed. It is also important to note that based on the

Chemical Analysis report, those sticks cannot be considered to be

incriminating articles as there were no blood stains on those sticks.

In the same  way, the sword and axe allegedly recovered from

Accused Nos. 13 and 11 respectively also do not have bloodstains.

In these  circumstances, the  prosecution  cannot  be  said to  have

proved the fact that the palm of the deceased has been amputated

by the accused with those weapons.

40. In the opinion of Dr. Pushpa Sadhawani—PW7, who

conducted postmortem on the body of the deceased, the cause of

the death was due to heavy loss of blood owing to the amputation of

his hand. However, his vital organs were found to be normal and

37

there was no injury to the vital organs. There were incised wounds

over dorsal aspect of right amputated wrist and forearm and lower

part of the leg. PW7 has specifically mentioned that there was no

laceration or contusion sustained by the deceased and opined that

had there been timely medical treatment, the deceased would have

survived. At the same time she made it clear that in case a person

is beaten up with sticks and iron pipe, as alleged by the prosecution

in the present case, contusions and lacerations are possible. In her

cross­examination, the Doctor also revealed that because of

amputation of hand and leg or both, a person may not die. Thus, in

totality, the medical evidence is not corroborating with the

prosecution’s case.   

41. It is quite surprising that PW1—Chanda who witnessed

the horrific assault on her husband, remained hidden in the cattle

shed for about two hours and then went to the house of

Harshwardhan Bhalekar to whom she had narrated the incident.

After that, both of them, without searching for the deceased went to

the house of PW1’s in­laws at Amravati. Then they visited the office

38

of Superintendent of Police and then they went to the police station

to lodge the complaint. Ironically, the said Harshwardhan Bhalekar

who could have been a prime witness has not been examined. The

conduct of PW1 and non­examination of such an important witness

Harshwardhan  Bhalekar, weakens the prosecution case. At the

same time, there was no proper explanation forthcoming for what

purpose they visited the office of Superintendent of Police, instead

of  searching for the deceased or  going to  police  station to lodge

complaint. As per the evidence of PWs 1, 2 and 3 Laxman Bhalekar,

Bhaurao, Arun Bhalekar and Namdeo Bhalekar are neighbours of

the  deceased living in the  same vicinity,  but  none  of them was

examined. Another laches in the prosecution case is that in the FIR

it was mentioned that one Dhanjay Sontakke and Janardhan

Alekar had also seen the accused assaulting the deceased, but they

too were not examined.  Similarly, one Anant Bhurbhure who first

found the dead body of the deceased in the fields of Yashwantrao,

was also not examined. It is clear that all those persons, especially

neighbours of the deceased, who witnessed the important

circumstances and who could be vital independent witnesses have

39

not been examined by the prosecution. There is no convincing

explanation forthcoming from the prosecution side.

42. Another facet that creates doubt on the prosecution story

is that PW5—Maroti, the real brother of PW2—Narendra and

nephew of PW4—Sudha, in his cross­examination (Ext.70) differed

with the statement recorded by police and marked ‘A’ that he and

his brother (PW2) saw the deceased lying in front of the door.

According  to  him he did not  say that fact,  police  arrived  in  the

village next day morning at 8 am, and he went to the field along

with police at 10 am. PW3—Vinayak husband of PW4—Sudha,

made a statement that he had seen the dead body in the field of

Yashwant Thawale. PW2—Narendra has also stated that at about

9.30 am on 20.6.1995, he along with other villagers found the dead

body of the deceased in the said field. We notice that in the midst of

several contradictory statements among the prosecution witnesses,

there is no proper explanation on record for PW1 and police

searching for the deceased at the wells and nullahs of the village,

instead of searching around the school, as per the prosecution story

40

PWs 2, 3 and 5 were fully aware that the deceased was dragged

towards school.  Moreover, looking at  the ambiguous narration of

sequences described by the witnesses, the chain of events in the

case cannot be said to have been properly brought on record by the

prosecution.  It is always the duty of  the Court to separate chaff

from the husk and to dredge the truth from the pandemonium of

Statements. It is  but  natural for  human beings to state  variant

statements due to time gap but if such statements go to defeat the

core of the prosecution then such contradictions are material and

the Court has to be mindful of such statements [See:  Tahsildar

Singh v. State of U.P., AIR 1959 SC 1012].   

43.  We have also  found from the  impugned  judgment that

the High Court has  misconstrued certain aspects of the case.

According to PW2—Narendra the incident occurred at about 9 p.m.

on 19.6.1995. In the FIR also the time was mentioned as 9 p.m. But

the High Court in its judgment observed “insofar as the

submissions regarding the availability of light is concerned, we find

that the incident took place at about 7.30 p.m. in the village in the

41

month of June and looking to the availability of light in the month

of June in Vidarbha region, we have no hesitation in holding that

the eyewitnesses had sufficient light to identify the accused

persons”. It is clear from the record that the alleged incident has

occurred at 9 p.m. and not at 7.30 p.m. as assumed by the High

Court, and there were also no eyewitnesses to the alleged

amputation of the hand of deceased and causing his death.

44.  At the conclusion of arguments, it is informed at the Bar

that the trial Court had conducted separate trial in respect of Raju

—Accused No. 16, who was earlier absconding, and acquitted him

of all the charges and the State has not preferred any appeal

against his acquittal.  We have also noticed that PWs 1, 2 and 3

have given contrary statements at the subsequent trial in Special

(Atrocities) Case No. 12 of 2008 held against Raju—Accused No. 16,

deviating from what they deposed in the present case.

45. Taking note of the foregoing shortcomings and

discrepancies in the prosecution case coupled with the

42

improvements and contradictions in the statements of prosecution

witnesses, it  cannot be said that the accused persons had really

formed into an unlawful assembly and carried out an assault on the

deceased that too  with  a view to  kill him, so as to attract the

provisions of criminal law. In the facts and circumstances of the

case, it is abundantly clear that the guilt of the accused persons

was not proved beyond reasonable doubt. We are of the considered

view that the trial  Court  had dealt  with the case  in a  fool­proof

manner by drawing out 11 important circumstances and delivered a

well reasoned judgment thereby acquitting the accused, with which

the High Court ought not to have interfered. In our view, there are

no compelling reasons and substantial grounds for the High Court

to interfere with the order of acquittal passed by the trial Court.

Added to the above, we are informed that the accused have already

undergone about three years' of imprisonment before they  were

enlarged on bail.  

46.  Keeping in view the substratum of the prosecution case

and the  material available on record,  we are of the considered

43

opinion that the prosecution has miserably failed to prove the guilt

of accused beyond reasonable doubt. In the aforementioned

circumstances,  we allow these appeals, set aside the impugned

order passed by the High Court and restore the judgment and order

passed by the trial  Court  in respect of the appellants before us.

Resultantly, their bail bonds stand discharged. Pending

applications, if any, shall also stand disposed of.

…………......................J.  (N.V. RAMANA)

..................................J.         (S. ABDUL NAZEER)

NEW DELHI, APRIL 26, 2018.