REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1479 OF 2015

MOTIRAM PADU JOSHI AND OTHERS        …Appellants

Versus

THE STATE OF MAHARASHTRA                                  ...Respondent

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 30.07.2015 passed  

by the High Court of Judicature at Bombay in Criminal Appeal No.174  

of 1994 in and by which the High Court reversed the judgment of the  

acquittal of the appellants/accused Nos. 3, 5, 7 and 8 and convicted  

them under Sections 147, 148, 302 read with 149 IPC and sentenced  

them to undergo life imprisonment.   

2. Briefly stated case of the prosecution is that PW-2-Anant Budhaji

Joshi is the brother of deceased Machindra Budhaji Joshi.  Both Anant  

and Machindra were doing the work of electric fitting.  PW-3-

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Kesarinath Bhagat and PW-4-Vasudeo Gaikar were also doing the  

same work.  Appellant Motiram Padu Joshi (A3), Ratan Maruti Vaskar  

(A5), Devidas Maruti Vaskar (A7), Ramnath @ Ram Padu Joshi (A8),  

deceased-Machindra and prosecution witnesses are residents of  

village Owa-peth, Taluka Panvel, District Raigad.  Appellants/accused  

were belonging to congress party and the deceased and the  

prosecution witnesses were from Shiv-sena party.  In the election of  

Zilla Parishad in 1992, both parties became inimical to each other.

3. On 26.04.1992, deceased Machindra had gone to village  

Nandgaon for electric fitting work along with PWs 3 and 4 and they  

returned at about 08.30 pm to the house of deceased.  All three of  

them had their dinner and were sitting on the cot in the courtyard.  PW-

2 was thereafter taking his dinner inside the house.  At about 09.30  

pm, appellants along with other accused being armed with deadly  

weapons like swords, knife, sticks and motor-cycle chain came to the  

courtyard of the house of deceased Machindra.  Appellant Motiram  

(A3) was carrying sword in his hand and assaulted the deceased on  

his head.  Appellant Ratan (A5) attacked the deceased with the sword  

on the legs of the deceased.  Appellant Ramnath (A8) also attacked  

the deceased with the sword on his head.  Appellant Devidas (A7)  

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attacked the deceased with knife on his foot and legs.  Other accused  

against whom the appeal is abated assaulted the deceased with  

motor-cycle chain and sticks.  On seeing the accused armed with  

deadly weapons, PWs 3 and 4 got frightened and went inside the  

house and stood near the window of the house and witnessed the  

occurrence.  Due to the assault, the deceased fell down from the cot  

having sustained grievous injuries and PW-2 took the deceased in the  

truck of his brother PW-5-Eknath Joshi to Taloja police station.   

Considering the serious conditions of the deceased, he was sent to the

Municipal Dispensary at Panvel along with police constable Mhatre.   

PW-15-Atmaram, Head Constable recorded the statement of PW-2,  

based on which, FIR in Crime No.44/92 was registered under Sections

147, 148, 149 and 307 IPC.  On the same night at about 11.30 pm,  

deceased Machindra succumbed to injuries and the FIR was altered  

from Section 307 IPC to Section 302 IPC.  

4. Sub-Inspector Mr. Laxman Shejal (PW-16) had taken up the  

investigation and he visited the spot and prepared the rough sketch  

(Ex.A42).  From the spot, he collected blood-stained quilt (Article No.3)

and also blood-stained soil and sample mud.  The body was sent to  

autopsy and PW-14-Dr. Ramrao Kendre conducted the post-mortem  

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and noticed as many as twenty-six injuries in the nature of incised  

wounds, contusions on the head, legs, right arm and all over the body  

of the deceased.  Dr. Ramrao Kendre opined that the cause of death  

was “shock secondary to celebral contusion due to blood trauma over  

occipital area”.   

5. The accused were arrested on 27.04.1991.  Based on the  

disclosure statement of appellant Motiram, one sword (Article No.8)  

was recovered on 09.05.1992.  Swords (Article No.9) also came to be  

recovered at the instance of appellants Ratan and Ramnath on  

11.05.1992 and 10.05.1992.  The motor-cycle chain and sticks also  

came to be recovered from the other accused.  The Chemical Analysis

Report disclosed that ‘A’ group blood was found on Article No.8 (sword

recovered at the instance of appellant Motiram) and Article No.12  

(Motor-cycle chain).  On completion of investigation, charge sheet was

filed against all the nine accused under Sections 147, 148, 302 read  

with 149 IPC.

6. To prove the charges against the accused, the prosecution has  

examined as many as sixteen witnesses and also produced material  

objects and exhibited documents.  The accused were questioned  

under Section 313 Cr.P.C. about the incriminating evidence and  

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circumstances and the accused denied all of them and stated that they

have been falsely implicated.  Upon consideration of evidence, the trial

court pointed out that PW-2 has a criminal record and that his  

evidence is improbable.  The trial court also held that the presence of  

PWs 3 and 4 was doubtful and their evidence is untrustworthy and  

cannot be relied upon to convict the accused.  The trial court further  

held that the prosecution has not proved the guilt of the accused  

beyond reasonable doubt and acquitted all the accused.

7. On appeal by the State, the High Court held that the evidence of  

PWs 2 to 4 as to the overt act of the accused is consistent and  

corroborated by the medical evidence and recovery of weapons.  The  

High Court held that the trial court erred in disbelieving the evidence of

eye witnesses and the reasonings of the trial court suffers from  

perversity.  Observing that prompt registration of FIR lends credence  

to the prosecution case which is also strengthened by medical  

evidence and recovery of weapons, the High Court reversed the  

judgment of the trial court and convicted the appellants as aforesaid in  

para (1).  The High Court maintained the acquittal of accused Baburao

(A2).   

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

accused Ragho Dharma Koli (A1), Rohidas Balram Joshi (A4),  

Satyawan Balu Waskar (A6) and Dnyandeo Sakharam Joshi (A9) died  

and the appeal against them stood abated.

9. We have heard Mr. Y.P. Adhyaru and Mr. Sidharth Luthra learned

senior counsel appearing on behalf of appellants and the learned  

counsel appearing on behalf of State of Maharashtra.  We have  

perused the impugned judgment and carefully considered the rival  

contentions and the evidence and materials placed on record.

10. There are three eye witnesses namely Anant, brother of  

deceased (PW-2), Kesarinath (PW-3) and Vasudeo (PW-4).  PWs 2 to  

4 have consistently stated that on the date of incident, after having  

dinner, deceased was lying on the cot in the courtyard and PWs 3 and  

4 were sitting near him.  PW-2 went inside and was taking meal.  At  

about   09.30 pm, the appellants and other accused armed with  

weapons came there shouting and running.  On seeing the accused  

armed with deadly weapons, PWs 3 and 4 got frightened and went  

inside the house.  Appellant Motiram attacked the deceased with  

sword on his head, appellant Ratan attacked the deceased with sword  

on his legs, appellant Ramnath attacked the deceased with sword on  

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his head and appellant Devidas attacked the deceased with knife on  

his foot and legs.  On hearing the alarm raised by deceased  

Machindra, PW-2 came out and raised shouts and on seeing the  

neighbours, the accused ran away from the spot.  PWs 2 to 4 have  

consistently spoken about the overt act of the appellants as mentioned

above.  

11. Evidence of PW-2 and his credibility is attacked by the  

appellants contending that:- (i) PW-2 though present in the house did  

not go to the rescue of his brother Machindra and remained mute  

spectator; and        (ii) PW-2 has a criminal record.  Just prior to the  

incident, PW-2 went inside the house and was taking meals.  On  

hearing the alarm raised by his brother Machindra, PW-2 came  

outside.  As the accused were many in numbers and armed with  

deadly weapons like swords, knife, motor-cycle chain and sticks etc.,  

PW-2 being unarmed would have naturally become frightened and  

may not have dared to interfere.  Evidence of a witness is not to be  

disbelieved simply because he has not reacted in a particular manner.

12. Likewise, the relationship of PW-2 with the deceased cannot be  

the reason for doubting the testimony of PW-2.  It is fairly well-settled  

that relationship is not a ground affecting the credibility of a witness.  In

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Mohabbat v. State of M.P., (2009) 13 SCC 630, this Court held as  

under:-  

“11. Learned counsel for the respondent State on the other hand  supported the judgment of the High Court. “12. Merely because the eyewitnesses are family members their  evidence cannot per se be discarded. When there is allegation of  interestedness, the same has to be established. Mere statement  that being relatives of the deceased they are likely to falsely  implicate the accused cannot be a ground to discard the evidence  which is otherwise cogent and credible. We shall also deal with the  contention regarding interestedness of the witnesses for furthering  the prosecution version. 13. ‘5. … Relationship is not a factor to affect credibility of a  witness. It is more often than not that a relation would not conceal  actual culprit and make allegations against an innocent person.  Foundation has to be laid if plea of false implication is made. In  such cases, the court has to adopt a careful approach and analyse  evidence to find out whether it is cogent and credible. ……… To the same effect are the decisions in State of Punjab v. Jagir  Singh (1974) 3 SCC 277, Lehna v. State of Haryana (2002) 3 SCC  76 (SCC pp. 81-82, paras 5-9) and Gangadhar Behera v. State of  Orissa (2002) 8 SCC 381.”

The above position was also highlighted in Babulal Bhagwan  Khandare v. State of Maharashtra (2005) 10 SCC 404, Salim  Sahab v. State of M.P. (2007) 1 SCC 699 and Sonelal v. State of  M.P. (2008) 14 SCC 692 (SCC pp. 695-97, paras 12-13).”

As held in various decisions, judicial approach has to be cautious in  

dealing with such evidence.  It is unreasonable to contend that  

evidence given by related witness should be discarded only on the  

ground that such witness is related.

13. Evidence of PWs 3 and 4 is sought to be assailed on the ground  

that their names were not mentioned in the First Information Report  

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(FIR) and that they are interested witnesses.  Of course, names of  

PWs 3 and 4 were not mentioned in the FIR.  Deceased Machindra  

was critically injured and when he was taken to the police station, on  

seeing his serious condition, deceased was sent to the hospital along  

with police constable Mhatre.  PW-2 remained in the police station to  

lodge the complaint and his statement was recorded.  His brother  

having been critically injured, PW-2 must have been in a disturbed  

mind and must have been in a hurry to rush to the hospital to save his  

brother.  Non-mention of the names of eye witnesses (PWs 3 and 4) in

the FIR should be examined in the situation in which PW-2 was  

placed.

14. Furthermore, as pointed out by the High Court, FIR is not an  

encyclopedia which should contain all the details of the incident.  FIR  

is not an encyclopedia which is expected to contain all the details of  

the prosecution case.  It may be sufficient if the broad facts of the  

prosecution case about the occurrence appear.  Omission as to the  

names of the assailants or the witnesses may not all the times be fatal  

to the prosecution, if the FIR is lodged without delay.  Unless there are  

indications of fabrication, the court cannot reject the prosecution case  

as given in the FIR merely because of omission.  In the present case,  

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FIR was registered without delay and prompt registration of FIR itself  

lends assurance to the prosecution case.  The object of the FIR is to  

set the law in motion.  Omission to give the names of assailants or the  

names of witnesses in the FIR is not fatal to the prosecution case.   

The High Court was right in observing that non-mention of the names  

of eye witnesses in the FIR can hardly be fatal to the prosecution case.

15. Evidence of PWs 3 and 4 is assailed on the ground that PWs 3  

and 4 have not gone to the rescue of the deceased and it is quite  

unbelievable that on seeing the accused who were armed with  

weapons, both of them went inside the house.  It is further submitted  

that the trial court righty held that their evidence is not trustworthy and  

the High Court was not right in intervening such finding and basing the  

conviction on the evidence of PWs 3 and 4.  In their evidence, PWs 3  

and 4 have stated that on seeing number of accused armed with  

deadly weapons got frightened and went inside the house and stood  

near the window and saw the occurrence.  Their evidence cannot be  

doubted on the ground that they did not intervene in the attack nor  

made attempts to save the deceased.  On witnessing a crime, each  

person reacts in his own way and their evidence cannot be doubted on

the ground that the witness has not acted in a particular manner.  The  

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evidence of PWs 3 and 4 cannot be doubted merely because they  

have not acted in a particular manner.

16. We may usefully refer to the case in Rana Partap v. State of  

Haryana, (1983) 3 SCC 327 as under:-

“6. Yet another reason given by the learned Sessions Judge to  doubt the presence of the witnesses was that their conduct in not  going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is  most unreal. Every person who witnesses a murder reacts in his  own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start  shouting for help. Others run away to keep themselves as far  removed from the spot as possible. Yet others rush to the rescue of  the victim, even going to the extent of counter-attacking the  assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the  ground that he did not react in any particular manner is to  appreciate evidence in a wholly unrealistic and unimaginative way.”

17. While appreciating the evidence of witness, approach must be  

whether the evidence of witness read as a whole appears to have a  

ring of truth and consistent with the prosecution case or to find out  

whether it is against the general tenor of the case.  Their evidence  

cannot be doubted merely because they belong to opposite faction.  All

that is required is that their evidence is to be scrutinized with care and  

caution.  On testing the evidence of PWs 2 to 4, the High Court found  

that their evidence is consistent and credit worthy.  We find no reason  

to take a different view.

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18. The evidence of PWs 2 to 4 is corroborated by medical  

evidence.  Further, PW-14 opined that nineteen to fourteen injuries  

could have been caused by swords (Articles 8 and 9).  Oral evidence  

of PWs 2 to 4 is thus corroborated by the medical evidence.  PW-14-

Dr. Ramrao who conducted the post-mortem has noticed that “half of  

the stomach with rice is not digested”.  PW-14 opined that the  

deceased died within two hours of his last meal which again is  

consistent with the evidence of PWs 2 to 4.  Medical evidence of PW-

14 lends assurance to the evidence of PWs 2 to 4.   

19. Prosecution case is further corroborated by recovery of weapons

from the accused.  Based on the disclosure statement of appellant  

Motiram, one sword (Article No.8) was recovered and another sword at

the instance of appellant Ratan (Article No.9) was recovered and  

another sword was also recovered on the disclosure statement of  

appellant Ramnath.  Chemical Analysis Report (Ex. A32) showed that  

the blood-stained found on the quilt seized from the scene of  

occurrence was that of ‘A’ group.  ‘A’ group blood was also detected on

swords which were recovered, based on the disclosure statement of  

appellants Motiram (Article No.8) and Ratan (Article No.9).  The  

presence of ‘A’ group blood (Blood Group of deceased) on the  

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weapons recovered is yet another piece of evidence corroborating the  

evidence of PWs 2 to 4 and strengthening the prosecution case.

20. PW-14-Dr. Ramrao noticed that the thighs and legs of the  

deceased was smeared with mud.  Learned senior counsel for the  

appellants submitted that in view of the presence of mud on the body  

of the deceased, serious doubts arise as to the time and place of  

occurrence and that there is no possibility of the occurrence having  

taken place in the courtyard of the house of deceased Machindra.   

This submission does not merit acceptance for more than one reason.  

Firstly, as pointed out earlier, PW-16-Laxman Shejal, Investigating  

Officer had recovered blood-stained quilt (Article No.3) from the scene  

of occurrence i.e. courtyard of house of the deceased and also blood-

stained mud and sample mud.  Chemical Analysis Report (Ex. A32)  

showed presence of ‘A’ group blood in the quilt.  While narrating the  

occurrence, eye witnesses have stated that after the attack, the  

deceased had fallen down from the cot; in that course, thighs and legs  

of the deceased might have been smeared with mud.  The presence of

mud on the thighs and legs therefore does not raise doubts about the  

prosecution case.  This aspect of submission advanced by the  

appellants has been elaborately considered by the High Court in para  

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(42) of its judgment.  As rightly observed by the High Court, this is too  

insignificant a fact to give importance so as to disbelieve and discard  

the entire prosecution case as such.

21. Learned senior counsel for the appellants then contended that  

only when there are compelling and substantial reasons, the High  

Court can interfere with the order of acquittal and in the present case,  

there were no such compelling circumstances or glaring mistakes in  

the judgment of the trial court to reverse the order of acquittal.

22. It is fairly well-settled that in an appeal against the order of  

acquittal, the appellate court would be slow to disturb the findings of  

the trial court which had the opportunity of seeing and hearing the  

witnesses.  In an appeal against the order of acquittal, there is no  

embargo for reappreciating the evidence and to take a different view;  

but there must be strong circumstances to reverse the order of  

acquittal.  In the appeal against order of acquittal, the paramount  

consideration of the appellate court should be to avoid miscarriage of  

justice.

23. While considering the scope of power of the appellate court in an

appeal against the order of acquittal, after referring to various  

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judgments, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415,  

this Court summarised the principle as under:-

“42. From the above decisions, in our considered view, the  following general principles regarding powers of the appellate court  while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is  founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,  restriction or condition on exercise of such power and an appellate  court on the evidence before it may reach its own conclusion, both  on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling  reasons”, “good and sufficient grounds”, “very strong  circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are  not intended to curtail extensive powers of an appellate court in an  appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an  appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case  of acquittal, there is double presumption in favour of the accused.  Firstly, the presumption of innocence is available to him under the  fundamental principle of criminal jurisprudence that every person  shall be presumed to be innocent unless he is proved guilty by a  competent court of law. Secondly, the accused having secured his  acquittal, the presumption of his innocence is further reinforced,  reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of  the evidence on record, the appellate court should not disturb the  finding of acquittal recorded by the trial court.”

24. In Kallu alias Masih and others v. State of M.P., (2006) 10  

SCC 313, this Court held as under:-

“8. While deciding an appeal against acquittal, the power of the  appellate court is no less than the power exercised while hearing  appeals against conviction. In both types of appeals, the power  exists to review the entire evidence. However, one significant  difference is that an order of acquittal will not be interfered with, by  

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an appellate court, where the judgment of the trial court is based on  evidence and the view taken is reasonable and plausible. It will not  reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a  presumption of innocence in favour of the accused and the accused  is entitled to get the benefit of any doubt. Further, if it decides to  interfere, it should assign reasons for differing with the decision of  the trial court.”

25. In the present case, as held by the High Court, the trial court has

not properly appreciated the evidence and its findings are perverse.   

When the approach of the trial court is perverse, in an appeal against  

the order of acquittal, a duty is cast upon the High Court to  

reappreciate the evidence.  The deceased had sustained as many as  

twenty-six injuries.  PWs 1 to 3 have consistently spoken about the  

incident and that the appellants were armed with deadly weapons and  

the overt acts of the appellants which is corroborated by the medical  

evidence and also by recovery of weapons from the  

appellants/accused.  As observed by the High Court, the trial court  

gave importance to insignificant aspects like “smearing of the thighs  

and legs of the body with mud” and the conduct of the witnesses as to  

why they have not reacted in a particular manner and while doing so,  

the trial court failed to appreciate the substratum of the prosecution  

case.  The High Court on being satisfied that the conclusion reached  

by the trial court was erroneous reversed the order of acquittal  

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recorded by the trial court.  We do not find any good ground to  

interfere with the judgment of the High Court.

26. In the result, the conviction of the appellants under Section 302  

IPC read with Section 149 IPC is confirmed and the sentence of life  

imprisonment imposed upon each of them is confirmed and this appeal

is dismissed.

.…….…………...………J.        [RANJAN GOGOI]

…………….…………… J.

      [R. BANUMATHI] New Delhi; July 10, 2018

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