Paragraph numbers below are the court’s original numbering, recovered from the source text.
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.
3. The trial court arrived at the conclusion of acquittal on several grounds: I) 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 ~opy 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 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 GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF MAHARASHTRA [R. F. NARIMAN, J.] 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 ofRohini, 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 c in the autorickshaw while PW-2 Rohini and her father were driven to the hospital, thereby rendering improbable the autorickshaw ride to 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 E 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."
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 c 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 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 ifRohini 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.
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 Pan ch witness, P. W. 10 Vikas Pawar – Panch witness regarding the discovery of lungi at the instance of accused No. I. 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 GANESH SHAMRAO ;-\NDEKAR & ANR. v. STATE OF MAHARASH'IIRA [R. F. NARlMAN, J.) 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 conjecture. Even if true, if so many other factors lead to a reasonabie 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 ofRaghunath is 'B' and the blood group of accused no. I and accused no.3 is also 'B'. If that is so, the fact that the earth, Rohihi 's clothes, T-shirt and lungi, and weapons all have blood group 'B', would not necessarily lead to the conclusion that accused no. I 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 c is founded and arrive at its own conclusion. However, when an order of D 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 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 ofRaghunath. 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. PC: In view of the disagreement between us, papers to be placed before the Hon'ble Chief Justice oflndia to constitute an appropriate bench to rehear the matter. Ankit Gyan Matter referred to CJ!.