TaxTMI 
TaxTMI 
2016 (10) TMI 1106
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...., 8) Shailendra Sandipan Koyale, 9) Chandrakant Shankar Markad, 10) Babu Rama Berad, 11) Balu Naradeo Berad, 12) Manik Rama Berad, 13) Pandurang Babu Arade, 14) Sadashiv Shahu Arade, 15) Kisan Rama Berad, and 16) Appa Shabu Arade. 3. The trial court acquitted all the accused. The High Court upheld acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16. 4. Accused No.2 is reported to have died. Thus, eight appellants are before this Court. They are A1 Bhagwan Jagannath Markad; A3 Dada Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; A5 Sandipan Sakhara Koyale; A6 Nivrutti Sakharam Koyale; A7 Krishna Sakharam Koyale; A10 Babu Rama Berad and A11 Balu Naradeo Berad respectively. 5. According to the prosecution, one Bibhishan Vithoba Khadle has been murdered and six persons have been injured being Indubai, PW11 Dagadu Gopinath Koyale, PW18 Chaturbhuj Khade, PW15 Bibhishan Kshirsagar, Gopinath Mahadev Koyale and PW12 Kernath Koyale in the attack by the accused. 6. As per the prosecution version recorded in the FIR lodged by PW10 Satyabhama, her husband PW11 Dagadu Gopinath Koyale, father-in-law Gop....
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.... he should not contest the election. The said accused, however, replied that PW11 Dagadu had been Sarpanch for 10-12 years and thus, accused should be allowed to become Sarpanch. This led to inter se assault between PW11 Dagadu and deceased Bibhishan Vithoba Khade and the said accused was also assaulted by PW11 Dagadu. 9. The prosecution led evidence comprising of medical evidence, recovery of material objects, eye-witnesses and the investigation. We will make reference only to the relevant evidence on record. PW4 Dr. Shravan Gavhane conducted the post mortem on the body of the deceased and found seven injuries. Injury No.1 was on the head which was found to be fatal. Injuries Nos. 2 to 7 were said to be with hard and blunt object like sticks or swords. PW5 Dr. Dinesh Kumar examined the injured PW11 Dagadu and found 10 injuries which included eight incised wounds, two injuries on Gopinath Mahadev Koyale, one contused wound on PW18 Chaturbhuj Khade, three injuries on Murlidhar Yeshu Kshirsagar. He also found one incised wound on the right forearm of accused No.5 Sandipan Sakharam. He found two injuries on Bibhishan PW15. 10. The prosecution relied upon the eye witness account ....
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....sed. The accused are aggressors. They have launched attack while persons from the complainant's side had assembled to celebrate their Diwali. Vasti was set to fire. Bibhishan Khade died in the said attack and many persons from the side of complainant had received injuries. The assault was by deadly weapons like sword, barchi, knife, gupti and sticks. This was, therefore, not a case of clear cut acquittal of all the 16 accused. No further corroboration is necessary. Investigation is prompt and swift and even if other evidence regarding recovery of incriminating articles is not considered, the oral evidence and ocular evidence of the aforesaid witnesses i.e. P.W.10, 11, 12, 13, 15 and 18 and others discussed by us including those two doctors fully prove the prosecution case. The findings of the trial Court are totally perverse and therefore this appeal is required to be allowed, but to what extent and against which of the accused is the question. The close scrutiny of the evidence of eye witnesses particularly P.W.10, 11, 15 and 18 shows that P.W.10 has implicated accused Nos.1,2,3,5,6,7, 10 and 11. P.W.11 has implicated accused Nos.1,2,3,4,5,6,7 and according to P.W.11, accused No.3....
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....as registered. The omissions in the statement made to the police amount to contradictions as per explanation to Section 162 Cr.P.C. Thus, the evidence of eye witnesses PWs10, 11, 12, 15 and 18 has been rightly rejected by the trial court and could not be relied upon by the High Court. Since there was enmity between the parties, there was possibility of exaggeration and false implication and it was not safe to convict the appellants. It was also submitted that since the incident was 28 years old, some of the appellants have become very old and ought not to be convicted at this stage. Reliance has been placed on the judgments of this Court in Padam Singh versus State of U.P. (2000) 1 SCC 621) , Devatha Venkataswamy versus Public Prosecutor, High Court of A.P. (2003) 10 SCC 700) , Narendra Singh versus State of M.P. (2004) 10 SCC 699) , Prasanna Das versus State of Orissa(2004) 13 SCC 30) , Majjal versus State of Haryana(2013) 6 SCC 798) , Lalita Kumari versus Govt. of U.P. (2014) 2 SCC 1), and Baby alias Sebastian versus Central Inspector of Police(2016) 7 Scale 444). 15. On the other hand, learned counsel for the State and the complainant, supported the judgment of the High Court....
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.... is whether the High Court was justified in reversing the acquittal of the appellants on the basis of evidence available on record. 17. Before considering this aspect with reference to the evidence on record, we may advert to the settled principles of law dealing with the issues arising in the present case. The approach to be adopted by the court generally in appreciating the evidence in a criminal case as also the approach of the appellate court is discussed in several decisions of this Court, some of which have been cited by learned counsel for the parties. 18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions - (i) when a person feels absolutely certain of a fact - "believe it to exist" and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the c....
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....tability (Gangadhar Behera vs. State of Orissa (2002) 8 SCC 381 -para 15) . On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness. 20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape. (Gangadhar Behera (supra), para 17) 21. An offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language ....
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....nd which is not." 22. We have referred to the above settled principles as the trial court has adopted perverse approach in rejecting the entire evidence comprising of injured eye witnesses when one person has been killed and six others have been injured. The trial court ignored the above principles by mechanically rejecting the evidence of all the witnesses by finding one or the other contradiction. The occurrence has taken place in broad day light. One of the accused himself mentioned about the enmity on account of the panchayat election. The said accused himself is injured which proves his presence at the scene of the occurrence. This version further shows the presence of deceased and the injured. But his version fails to explain as to why the deceased would have been killed by PW11 when the deceased was the messenger of PW11 himself. Except for some contradictions, the version of eye witnesses PWs 10, 11, 15, 12 and 18 is consistent. There is no reason to reject the said version. Of course, the court has to be cautious in appreciating evidence and rule out exaggeration. 23. We may also note that version of A5 is not probable and mere fact that injury on him is not explaine....
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....eport are disregardedly the same have only corroborative value, prosecution case is established by credible eye witness account. Mere fact that some of the witnesses have not been examined is also of no consequence when credible evidence to prove the case has been produced. We thus, find that the High Court rightly reversed the trial Court judgment. 26. One of the submission of learned counsel for the appellants is that telephonic message by PW12 recorded at the police station should have been treated as FIR. We have been taken through the said message which is to the effect that A5 and other accused assaulted the complainant party. Learned counsel relied upon the observation in Lalita Kumari (supra) to the effect that a GD Entry can also be treated as FIR in an appropriate case. From the said observation, it cannot be laid down that every GD Entry or every cryptic information must be treated as FIR. In Anand Mohan versus State of Bihar(2012) 7 SCC 225) while referring to Section 154 Cr.P.C., this Court observed that every cryptic information, even if not signed by the person giving the information, cannot be treated as FIR. The information should sufficiently disclose the....
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....onsider the fact that the trial court has the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the acquittal. If two reasonable conclusions can be reached, the appellate court should not disturb the finding of the trial court. In the present case, the High Court has followed the above principles. 29. In Bava Hajee Hamsa (supra) while approving the reversal of acquittal by the High Court, it was held that erroneous approach of the trial Court led to misdirection in appraising the evidence and the High Court was justified in rejecting the approach of the trial court and in analyzing the evidence in its own way. This Court observed : "30. We agree with the High Court that the very "scheme of approach" adopted by the trial Judge was faulty and misleading. It led to aberration and misdirection in appraising evidence, and vitiated his conclusions. The learned trial Judge started correctly when on a broad look of the evidence, he found the evidence of PWs 1, 8 and 9 prima facie acceptable. But after the second lap of discussion, he became sceptical; and reversed his mind at the end of the third round of circumgyratory discu....