2004 ALL MR (Cri) 5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

Shri. Balu Hanmant Mohite Vs. Durgappa Yelappa Power & Ors.

Criminal Revision Application No.106 of 1997

22nd July, 2003

Petitioner Counsel: Mr. I. G. JOSHI
Respondent Counsel: Mr. S. A. INGAWALE, Mr. SHRINGARPURE

(A) Criminal P.C. (1973), S.378 - Order of acquittal - Interference with - High Court has to be slow while dealing with appeal against acquittal - High Court should not interfere in it unless there are grounds necessitating the reversal.

The High Court has to be slow in deciding to set aside the order of acquittal recorded by the trial Court in favour of the accused which had the opportunity of observing the demeanour of the witnesses examined before it. If the said order of acquittal is well reasoned and the conclusions recorded by the trial Court are in accordance with the evidence, are consistent with the evidence on record, the High Court should not interfere in it unless there are grounds necessitating the reversal. AIR 1973 SC 55 - Followed. [Para 4]

(B) Evidence Act (1872), S.3 - Appreciation of evidence - Suspicion - Criminal trial - Injuries sustained by victim - Conjectures, surmises and suspicion cannot take place of the evidence in criminal trials - In every criminal trial, the prosecution is obliged to prove that the accused and none else caused the injuries which the victim sustained.

There may be injuries sustained by victim and there may be medical evidence proving that the victim had those mechanical injuries. But the important point which is to be considered in every criminal trial is the nexus of the accused with such mechanical injuries. In this case, the prosecution failed to establish such important nexus and, therefore, though there may be injuries sustained by the victim and those injuries may have been mechanical and likely to have been caused by weapon like knife, it cannot strengthen the evidence which is otherwise. Conjectures, surmises and suspicion cannot taken place of the evidence in criminal trials. In every criminal trial, the prosecution is obliged to prove that the accused and none else caused the injuries which the victim sustained. The guilt in criminal prosecution has to be proved as "must have been". The prosecution cannot exonerate itself by proving it to the point of "may have been caused by the accused". There is lot of difference between this "may" and "must". Guilt has to be proved in every criminal prosecution beyond reasonable doubt except the offences revolving around the provisions of special laws wherein presumptions have been provided. But it is to be kept in mind that the presumptions indicated by penal laws are always "rebuttable" presumptions. There cannot be non-rebuttable presumptions for consideration in criminal trial keeping in view the criminal jurisprudence prevalent in this country. [Para 5]

Cases Cited:
Shivaji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55 [Para 3]


JUDGMENT

JUDGMENT :- Heard the counsel appearing for the petitioner at length. Shri. Joshi submitted that the learned trial Judge committed the error in discarding the prosecution evidence and holding that the prosecution did not prove the guilt of the accused beyond reasonable doubt. He submitted that the trial Judge did not give proper importance to the medical evidence which established that the deceased had sustained the injuries which were likely to be caused by instruments like knives. He submitted further that the learned trial Judge did not appreciate the evidence as a whole and, therefore, landed in error of coming to the conclusion that the accused were not guilty. He prayed for setting aside the said order of acquittal and prayed that the said accused be convicted.

2. Shri. Shringarpure, Additional Public Prosecutor, justified the order under challenge as correct, proper and legal by pointing out the variance in the evidence of PW-3, the panchanama and the F.I.R. He submitted that the judgment and order which is put to challenge is well reasoned and is in accordance with the evidence on record. He submitted that the revision be dismissed.

3. As it has been held by the Supreme Court in the matter of Shivaji Genu Mohite Vs. State of Maharashtra reported in AIR 1973 SC 55 while dealing with the appeal against acquittal the High Court has to be slow. The Supreme Court held that the presumption of innocence in favour of the accused at the time of trial does not get weakened at later stage of appeal.

4. While dealing with the appeals against acquittal, the phenomenon mentioned above has to be kept in mind. The High Court has to be slow in deciding to set aside the order of acquittal recorded by the trial Court in favour of the accused which had the opportunity of observing the demeanour of the witnesses examined before it. If the said order of acquittal is well reasoned and the conclusions recorded by the trial Court are in accordance with the evidence, are consistent with the evidence on record, the High Court should not interfere in it unless there are grounds necessitating the reversal.

5. In the present case, the trial Judge has pointed out the glaring discrepancies in the prosecution evidence, more particularly, in the evidence of eye-witnesses PW-2 and PW-3. It pointed out that the spot of offence is at the distance of about 78 (sic) away from the Palange pan stall where as per the prosecution case there was a bickering between the deceased on the one hand and the accused on the other side. That was the spot where there was exchange of abuses between the deceased on the one side and the accused on the other side. That was the spot where as per the prosecution case the accused allegedly assaulted the deceased. There is glaring discrepancy in the F.I.R., Panchanama and the occult testimony of PWs.2 and 3. Even there is discrepancy in the evidence of PWs.2 and 3. Shri. Joshi submitted that the trial Court did not give appropriate consideration to the injuries sustained by the deceased. This Court is afraid that it cannot agree with the submissions of Shri. Joshi on this point. There may be injuries sustained by victim and there may be medical evidence proving that the victim had those mechanical injuries. But the important point which is to be considered in every criminal trial is the nexus of the accused with such mechanical injuries. In this case, the prosecution failed to establish such important nexus and, therefore, though there may be injuries sustained by the victim and those injuries may have been mechanical and likely to have been caused by weapon like knife, it cannot strengthen the evidence which is otherwise. Conjectures, surmises and suspicion cannot take place of the evidence in criminal trials. In every criminal trial, the prosecution is obliged to prove that the accused and none else caused the injuries which the victim sustained. The guilt in criminal prosecution has to be proved as "must have been". The prosecution cannot exonerate itself by proving it to the point of "may have been caused by the accused". There is lot of difference between this "may" and "must". Guilt has to be proved in every criminal prosecution beyond reasonable doubt except the offences revolving around the provisions of special laws wherein presumptions have been provided. But it is to be kept in mind that the presumptions indicated by penal laws are always "rebuttable" presumptions. There cannot be non-rebuttable presumptions for consideration in criminal trial keeping in view the criminal jurisprudence prevalent in this country.

6. Thus, this criminal revision application stands dismissed.

7. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.

Application dismissed.