1997 ALL MR (Cri) 692
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI AND S.S. PARKAR, JJ.
The State Of Maharashtra Vs. Janardan Krishna Bhoir And Ors.
Criminal Appeal No. 99 of 1983,Criminal Appeal No. 474 of 1982
12th August, 1996
Petitioner Counsel: Mr. D. A. NALAWADE
Respondent Counsel: Mr. RAJA BHONSALE with Smt. V. R. BHONSALE
(A) Evidence Act (1872), S.3 - Credibility of witnesses - Solitary eye witness - Court can sustain conviction on testimony of such witness, only if he is wholly truthful witness and there is nothing adverse in his evidence 1995(4) Crimes 516 foll.
Criminal trial - Solitary eye witness - Credibility. (Para 9)
(B) Criminal P.C. (1973), S.378 - Appeal against acquittal - Powers of High Court
Appeal to High Court - against acquittal - Interference.
It is well settled that in an appeal against acquittal the Appellate Court only interferes if the view of acquittal on facts is clearly unreasonable or it is founded on any illegality which has resulted in failure of justice. So also well-settled that if two views are possible and the trial Court has taken the view of acquittal, the High Court does not interfere inspite of the fact that it may feel that had it been the trial Court it might have taken a contrary view. AIR 1971 SC 66 and AIR 1987 SC 1083 foll. [Para 10]
(C) Criminal P.C. (1973), S.401 - Revision against acquittal - Scope of revision against - acquittal is narrower than that of appeal against acquittal - If interference in latter is not possible, then question of interference with same judgment of acquittal in former does not arise. AIR 1962 SC 1788 foll.
Revision against acquittal - Revisional jurisdiction of High Court. (Para 12)
2. The appellant aggrieved by judgment and order dated 3rd September 1982 passed by the Sessions Judge of Raigad, Alibag, in Sessions Case No.9 of 1981, acquitting the Respondents under Section 302 read with 34 of I.P.C., has come up in appeal before us. Criminal Revision Application No.474 of 1982 has been preferred by the father of the deceased and another against the said acquittal of the respondents.
On 8th November, 1980, Hiraji Tandel P.W.-2, the solitary eye witness of the incident, left Uran at about 4.45 p.m. on a motor-cycle for going to village Pagote. Uran is said to be situated at a distance of about 10 Kms. from Pagote. The reason for the visit was that he wanted to take tea. On the way he met the deceased Avinash who sat on the pillion seat of the said motor-cycle. When they had reached the railway crossing, along Navghar Road, the respondents appeared in front of the motor-cycle. They were armed with sticks. Respondent no.1 dealt a blow on the motor-cycle. Hiraji stopped the motor-cycle. The respondents mercilessly assaulted Avinash with sticks. Hiraji tried to intervene by holding one of the respondents at a time but remaining three went on attacking Avinash. He even touched the feet of the respondents nos.1 and 2 imploring them not to attack Avinash but the same had no result. Respondent No.4 lifted a big stone and when he was about to throw the same on Avinash, Hiraji caught hold of his hand and pulled him back. Hiraji tried to thwart the attack on Avinash for about 10 minutes but failed. Avinash become unconscious. Hiraji left on his motor-cycle to Police Station Uran and informed Inspector Sali P.W.-8 and PSI Bhangale P.W.-9 about it. Inspector Sali immediately on a police jeep came to the scene of the incident where he found Avinash lying in an unconscious condition.
Inspector Sali and others put Avinash in the jeep. Thereafter, they took him to Uran Dispensary.
4. When Avinash was admitted in Uran Municipal Dispensary, he was examined by Dr. Anandrao Baburao Dahiphale P.W.-3. Dr. Dahiphale found him to be in a state of shock having multiple injuries on his person. He tried his best to keep him alive. However, he died at about 8.20 p.m. Dr. Dahiphale performed the autopsy on 9/11/1980 at 7.30 A.M. On autopsy he found 18 ante-motem injuries on the dead body of the deceased, their break-up being thus : 8 contused lacerated wounds, 1 welling, 6 contusions and 3 multiple contusions.
On internal examination, he found fractures of the left temporal bone, 9th rib on the right side, perforation of intestine; rupture of liverlateral side and hemorrhage on the left side of peritoneum. According to Dr. Dahiphale the cause of death could be attributed to : (a) rupture of liver, (b) testicular contusion, (c) fracture of skull, (d) rupture of small intestine, (e) fracture of bones, and (f) multiple contusions on body. In the opinion of Dr. Dahiphale the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death.
During the cross-examination Dr. Dahiphale also stated that injuries nos. 1, 2, 5, 6, 12, 13, 14 and 15 were bleeding injuries.
6. The investigation of the case was conducted by PI Shankarrao Sali P.W.-8 and PSI Bhangale P.W.-9 in the usual manner. During the course of it sticks were recovered from respondents Janardan Bhoir and Balu. On 27th November, 1980, test identification of Vijai Bhoir who was not named in the F.I.R. was also held. At the test identification, Hiraji identified him. After completing the investigation PI Sali submitted the chargesheet on 11th January 1981.
7. The case was committed to the Court of Session in the usual manner. In the Trial Court charge under Section 302 read with 34 of I.P.C. was framed against the respondents, to which they pleaded not guilty and claimed to be tried. In the Trial Court, the prosecution including a solitary eye witness viz. Hiraji P.W.-2, in all examined nine witnesses. Apart from Hiraji prosecution also examined Shrinivas the father of the deceased P.W.-6, P.W.-5 Dattu Dharma Patil, P.W.-8 PI Sali and P.W.-9 Bhangale. The said witnesses deposed that after the incident Hiraji informed them about the assault on Avinash at the place of incident and thereupon they rushed to the place of incident and found Avinash lying in an injured condition. In defence no witness was examined.
The learned Trial Judge after recording the evidence of the prosecution witnesses and hearing the learned counsel for the parties was squarely satisfied that the prosecution had failed to prove the guilt of the respondents/accused beyond reasonable doubt and hence passed the impugned judgment.
8. We have heard Mr. D. A. Nalawade, Additional Public Prosecutor for the appellant/State and Mrs. V. R. Bhonsale for the Respondents/Accused at considerable length. We have also perused the deposition of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the respondents recorded under Section 313 of Cr.P.C.; and the impugned judgment. In our opinion both the present appeal as well as the Revision Application preferred by the father of the deceased and another against the acquittal of the respondents are devoid of substance and deserve to be dismissed.
9. There is no dispute between the learned counsel for the parties that there is a solitary eye witness of the incident viz. Hiraji P.W.-2. We are alive to the fact that the Court can record/sustain a conviction on the testimony of a solitary eye witness but the same can be done only if he is a wholly truthful witness and there is nothing adverse in his evidence. We are fortified in our view by the observations contained in paragraph 4 of the judgment of the Apex Court reported in 1995(4) Crimes, page 516 (Kartik Malhar Vs. State of Bihar) which read thus :-
" On a conspectus of these decisions it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar's case (Supra) and therefore, conviction can be recorded on the basis of the statement of single witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the Court, on the same time is convinced that he is a truthful witness."
In the instant case, the learned Trial Judge has given some reasons for not placing reliance on Hiraji's testimony which we now propose to consider. He has firstly observed that Hiraji in his cross-examination had admitted that 10 to 12 cases under the Prohibition Act for possession of contraband liquor were pending against him. The learned trial Judge felt that on account of this circumstance he was a very convenient witness for the police to find for he could not dare to refuse to become an eye witness. He secondly felt that if the account of the incident as given out by Hiraji been true ( we have narrated the said account in paragraph 3 ), Hiraji would not have escaped without any injury. He thirdly felt that Hiraji's claim that he had lifted Avinash along with others from the place of incident did not appear to be tenable as there were no blood stains on his clothes. In this connection, the learned Trial Judge has referred to the circumstance that the medical evidence, which has been detailed in paragraph 4, is to the effect that injuries nos. 1, 2, 5, 6, 7, 12, 13, 14 and 15 of the deceased were bleeding injuries and had he lifted Avinash there would have been blood stains on his clothes. He fourthly felt that Hiraji's claim that the incident took place on the Southern Side of railway crossing on Uran Navghar Road is doubtful because Inspector Sali, the Investigating Officer, did not find any blood stains there. He fifthly felt that the circumstance that Hiraji did not disclose the names of the assailants of Avinash to Inspector Sali when be rushed from the place of the incident to ensure that he was rescued, shows that he did not see the incident. He sixthly felt that the conduct of Hiraji who wanted to save Avinash from being killed in rushing to police station Uran which was at a considerable distance from the place of the incident, instead of seeking the help of people residing at nearby places was again unnatural. In this connection he felt that it was unnatural that although Hiraji met Anand Narayan Thakur of village Jaskhar, who was the Sabhapati of village Jaskhar, he did not disclose the incident to him or ask him for help. He seventhly felt that it was extremely improbable that Hiraji would have gone to have tea at a distance of about 10 Kms. from his place and would have met Avinash whom he asked to sit on the pillion seat of his motor-cycle. He eightly felt that had the incident taken place at the time, place and in the manner suggested by the prosecution then some other persons would have seen the incident because the place of incident was a public highway. He lastly felt that the claim of the prosecution that the F.I.R. was lodged at Municipal Dispensary Uran is also doubtful. In this connection he pointed out that Inspector Sali has admitted that when the F.I.R. has been recorded outside the police station and it was sent to the police station, the said F.I.R. was entered in the Register of F.I.Rs. with an endorsement thereon that F.I.R. was recorded outside the Police Station and the Register is not supposed to bear the signature of the informant. However, in this case, both the F.I.R. at Exh.8 and the F.I.R. entered in the Register bear the signatures of Hiraji. The Trial Judge felt that this anomaly has not been explained by the prosecution. This means that the F.I.R. was not lodged at Uran Municipal Dispensary but was lodged at leisure at police station Uran.
The learned Trial Judge also felt that there was no immediate motive for the respondents to assault the deceased. The motive alleged by the prosecution was that, in the year 1978 one Madhukar Laxman Bhoir, brother of respondent No.2 was murdered and Shrinivas, his son Avinash and others were implicated as accused. The evidence of Hiraji is that the said murder had taken place on 28th September 1978. If that murder was the motive the respondents would not have waited till 8th November 1980 (the date of the incident) viz. more than two years to take revenge by committing Avinash's murder.
Coupled with these reasons, we also find that there are some omissions in the F.I.R. which also affect the credibility of Hiraji. They have been mentioned in the impugned judgment.
10. It is well settled that in an appeal against acquittal the Appellate Court only interferes if the view of acquittal on facts is clearly unreasonable or it is founded on any illegality which has resulted in failure of justice. It is equally well-settled that if two views are possible and the trial Court has taken the view of acquittal, this Court does not interfere inspite of the fact that it may feel that had it been the trial court it might have taken a contrary view. This proposition has been spelt out by the Apex Court in a large number of judgments including those reported in A.I.R. 1971 S.C. 66 (Khedu Mohton and others Vs. State of Bihar) and A.I.R. 1987 S.C. 1083 (Tota Singh Vs. State of Punjab).
11. In our view when the evidence of Hiraji is examined in the light of the infirmities mentioned in paragraph 9 and the circumstance that he is a solitary eye witness of the incident is borne in mind it cannot be said that the view of the learned Trial Judge that Hiraji was not a reliable witness, was not a plausible view.
In our judgment, the view of acquittal of the respondents taken by the trial court is a plausible view and cannot be faulted with. In our opinion the impugned judgment does not suffer from any perversity or infirmity or illegality the light of which can persuade this Court to disturb the acquittal of the respondents.
It is well settled that the scope of a revision against acquittal is narrower than an appeal against acquittal (see A.I.R. 1962 S.C. 1788 K. Chinnaswami Reddy Vs. State of Andhra Pradesh and Another) and if interference in the latter is not possible there is no question of interfering with the same judgment of acquittal in the former.
13. For the said reasons we are satisfied that both Criminal Revision Application No. 474/82 and Criminal Appeal No. 99/83 are devoid of substance. Since in Criminal Revision Application No. 474/82 rule has not been granted by this Court, the same is dismissed in limine. Criminal Appeal No. 99/83 is also dismissed. The acquittal of the respondents is confirmed. They are on bail. They did not surrender. Their bail bonds stand cancelled and sureties discharged.
Before parting with the judgment, we would be failing in our fairness if we do not mention that Mr. D. A. Nalawade, learned Additional Public Prosecutor with his customary tenacity left no stone unturned to persuade us to reverse the impugned judgment.