Monday 30 April 2018

Whether Influence Of Bias In Testimony Of Interested Witnesses can Be Overlooked?

From the study of the aforesaid precedents of this court,
we may note that whoever has been a witness before the court of
law, having a strong interest in result, if allowed to be weighed in
the same scales with those who do not have any interest in the
result, would be to open the doors of the court for perverted truth.
This sound rule which remain the bulwark of this system, and
which determines the value of evidence derived from such sources,
needs to be cautiously and carefully observed and enforced. There
is no dispute about the fact that the interest of the witness must
affect   his   testimony   is   a   universal   truth.   Moreover,   under   the
influence of bias, a man may not be in a position to judge correctly,
even if they earnestly desire to do so. Similarly, he may not be in a
position   to   provide   evidence   in   an   impartial   manner,   when   it
involves his interest. Under such influences, man will, even though
not consciously, suppress some facts, soften or modify others, and
provide favorable color. These are most controlling considerations in
respect to the credibility of human testimony, and should never to
be overlooked in applying the rules of evidence and determining its
weight in the scale of truth under the facts and circumstances of
each case.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 408 OF 2014

BHASKARRAO & ORS.  Vs  STATE OF MAHARASHTRA     
Dated: APRIL 26, 2018.


1. These appeals arise out of the common judgment and
order, dated 21st  December, 2013, passed by the High Court of
Judicature at Bombay, Bench at Nagpur, in Criminal Appeal No.
290 of 1998 whereby the High Court reversed the order of acquittal
passed by the Additional Sessions Judge, Amravati in Sessions Trial
No. 40 of 1995 and convicted all the accused/appellants herein
except accused no. 6 (since dead) for the offence punishable under4
Sections 147, 148, 452 read with Section 149, Section 302 read
with Section 149 and Section 506 of the Indian Penal Code (IPC).
2. The prosecution story in short is that, on 19th June, 1995
at about 7 pm, in the village Jalka Shahapur an altercation had
taken place between two villagers, namely Shamrao (deceased) and
Balya   (Accused   No.   4)   on   the   road   near   a   grocery   shop   over
repayment of Rs.50/­. It was alleged that Shamrao (deceased) had
slapped Balya (Accused No. 4) during the scuffle. After sometime,
all the sixteen accused persons armed with weapons, while entering
the   house  of   Shamrao   hurling  abuses,  dragged   him  out   of   the
house, assaulted on his hands and legs. They are alleged to have
continuously   assaulted   Shamrao   while   simultaneously   dragging
him to a field where they finally cut his right palm and left the
place. During the course of assault by the accused, Chanda (PW1)
[wife of Shamrao] followed them pleading not to hurt her husband
and out of fear she took shelter in some cattle shed. Later on she
went to the house of one Harshawardhan Bhalekar and informed
him about the incident. Then Harshawardhan Bhalekar along with5
PW1 proceeded to Amravati and informed about the occurrence to
the family members of Shamrao. After that they went to the office of
Superintendent of Police, Amravati where they were advised to lodge
a   complaint   at   Nandgaon   Peth   police   station.   Accordingly,   a
complaint (Ext. 55) was lodged on 20th June, 1995 being crime case
No. 72 of 1995. It may be relevant to reduce a part of the FIR as
underName
  and
addresses   of
accused, if any
:      1. Gajanan Chincholkar
       2. Balya Bhagat
       3. Pramod Khedkar
       4. Raju Mohol
          +20 to 25 persons
Names   and
addresses   of
suspects
:
Nature of offence
with   penal
section.   Give
short
descriptions   of
stolen   property
with   its   value   if
any.
The   incident   is   that   on   the
above dt. Time and place, when
the   husband   of   the
complainant was in the home,
when he went to the house of
Balya   Bhagat   out   of   the
accused   persons   herein   for
demanding the money of fishes,
the   accused   persons   came   to
the house of the husband of the
accused   and   the   accused
persons have beaten and pulled
from the house and on account
of   the   said   occurrence,   the
offence is registered and taken
:6
for investigation.
3. Dattatray   Kulkarni,   A.P.I.   (PW17)   took   up   the
investigation and carried a search for missing Shamrao in the Jalka
Shahapur   village   and   ultimately   on   21st  June,   1995   on   the
information of one Ananda Bhurbhure, PW1 and PW17 found the
dead body of Shamrao, in the fields of one Yeshwant Thawale,
without his right palm which they traced at some distance. After
conducting the panchanama of scene of occurrence, inquest report
was drawn, clothes of the deceased were seized, statements of some
witnesses were recorded and the dead body was sent to the Civil
Surgeon   at   Amravati   for   postmortem.   All   the   accused,   except
accused no. 16 who was stated to be absconding, were arrested and
at   their   instance,   alleged   weapons   used   for   the   crime   were
recovered,   disclosure   statements   recorded,   seizure   panchanama
recorded   and   the   accused   were   got   medically   examined.   After
completion of investigation, charges were framed against accused
nos. 1 to 15 to which the accused pleaded not guilty and claimed
trial.7
4. In its effort to prove the guilt of the accused, prosecution
has examined as many as 19 witnesses. Learned trial Judge after
conducting a full fledged trial, came to the conclusion that the
prosecution has failed to establish the guilt of the accused beyond
reasonable doubt, therefore, all the accused, against whom trial
was conducted (accused nos. 1 to 15), were acquitted of the offences
they were charged with. Accused No. 16, who was absconding,
came  to   be  arrested  at   the   end  of   trial.   Hence,   the  trial   court
directed separate trial against him.
5. Aggrieved by the order of acquittal passed by the trial
court, the State of Maharashtra went in appeal before the High
Court. During the pendency of the appeal, before the High Court,
Accused   No.   6   expired.   The   High   Court   found   fault   with   the
acquittal order passed by the trial court and by its judgment which
is   impugned   herein,   convicted   all   the   accused   before   it   except
accused No. 6, for the offence punishable under Sections 147, 148,
452 read with Section 149, Section 302 read with Section 149 and
Section 506, IPC. They were sentenced to undergo imprisonment for8
a period of two years for the offence punishable under Sections 147,
148   and   452,   IPC.   Whereas   for   the   offence   punishable   under
Section 302 read with Section 149, IPC they were sentenced to
suffer imprisonment for life and to pay a fine of Rs.5,000/­ each, in
default, to further suffer imprisonment for one year. They were also
sentenced to suffer imprisonment for a period of six months and to
pay a fine of Rs.500/­ each, in default, to further suffer a period of
one month imprisonment for the offence under Section 506, IPC.
However, all the sentences were directed to run concurrently.
6. Dissatisfied   with   the   judgment   of   the   High   Court   in
reversing the order of acquittal, the Accused Nos. 1 to 5 and 7 to 14
are before us in these appeals assailing the judgment of the High
Court.   It   appears   that   Accused   No.   15,   Gajanan   Pandurang
Chincholkar, has not preferred an appeal against the judgment of
the High Court.
7. It may be beneficial to  note that the accused Nos. 1
(Motiram) and 3 (Ravindra) have filed Criminal Appeal No. 1330 of9
2014, Accused Nos. 2 (Bhaskarrao), 9 (Maroti Bhaskarrao Bhagat)
and 10 (Bhagwat Bhaurao Bhagat) have filed Criminal Appeal No.
408 of 2014, Accused Nos. 4 (Balya) and 5 (Vishnu Bharao Bhagat)
have filed Criminal Appeal No. 1578 of 2014, Accused No. 7 (Maroti
Mahadeorao Kosare) has filed Criminal Appeal No. 1229 of 2014,
Accused No. 8 (Laxman Bhaurao Bhagat) has filed Criminal Appeal
1328 of 2014, Accused No. 11 (Prabhakar Narsaji Bhagat) has filed
Criminal   Appeal   No.   1223   of   2014,   Accused   No.   12   (Babarao
Laxmanrao Adhao) has filed Criminal Appeal No. 1228 of 2014 and
Accused Nos. 13 (Dilip Uttamrao Mankur) and 14 (Pramod Devidas
Khedkar) have filed Criminal Appeal No. 520 of 2014. 
8. On   behalf   of   Accused   No.   8,   the   arguments   were
advanced by Mr. V.V.S. Rao, learned senior counsel. Ms. Anagha S.
Desai, learned counsel has argued on behalf of Accused Nos. 2, 7, 9
and 10 to 14, while Mr. Dharmendra Kumar Sinha, learned counsel
made submissions in respect of Accused Nos. 1, 3, 4 and 5. Having
heard the arguments advanced by the respective counsel, as the10
order impugned is one and the same, we proceed to deal with all
these appeals by a common judgment.
9. It is the case of the appellants—accused that the entire
prosecution   story   has   been   concocted   to   falsely   implicate   the
innocent   appellants   and   is   not   based   on   the   true   facts   and
circumstances. That there were several lapses in the prosecution
theory. That the dead body of the deceased was found in a field
which is about two kms away from the house of the deceased, and
there is no eyewitness to the factum of accused committing the
murder   of   deceased.   His   amputated   palm   was   found   at   some
distance to his dead body, but there was no evidence on record as
to who cut the palm of the deceased. There were also no bloodstains
on any weapon alleged to have been recovered by the investigating
authorities at the instance of accused. All the prosecution witnesses
are inter­related and there was no independent witness to support
the   prosecution   case.   The  trial  Court   has  rightly  discarded  the
evidence of interested witnesses.11
10. It is also argued that the prosecution has improvised the
circumstances from the stage of lodging FIR to the conclusion of
trial. In the FIR, there was no mention about the alleged quarrel
that took place between the deceased and Accused No. 4 over a
matter of Rs.50/­ near a grocery shop. PW1 (wife of the deceased)
introduced the story later on. The owner of the grocery shop was
not examined as a witness whose evidence would be crucial to prove
that   a   quarrel   has   taken   place   which   is   the   whole   basis   or
provocation for the incident. It was also alleged that there were two
other witnesses namely Charandas and Anant, but they too were
not examined by the prosecution. In the FIR, the names of accused
were specified as only four persons, but 16 persons have been
dragged  into  the   case  as  accused.  The  statements  of  witnesses
varied as to the presence of the accused at the time of occurrence
and their depositions are quite contradictory to the prosecution
case. There was also no test identification parade conducted and all
the accused persons are not familiar to the witnesses. The evidence
of prosecution witnesses is unbelievable inasmuch as the allegation
was that the deceased was dragged on the ground for about 2 kms12
from his house to the place where his dead body was found, even
then there were no injury marks on the body of the deceased.  
11. It is further submitted by the learned counsel that the
High Court failed to take into consideration the crucial facts that no
test   identification   parade   was   conducted,   no   motive   was
established, no injuries on vital parts of the deceased were noted,
and above all medical evidence did not corroborate with the alleged
ocular evidence. The High Court has also failed to take note of the
fact   that   the   trial   Court   has   not   committed   any   legal   error   in
appreciating   the   ocular   and   medical   evidence   to   reach   at   the
conclusion that the accused are innocent. The law is well settled by
this Court with regard to fresh appreciation of evidence in an appeal
against acquittal that even if on the basis of evidence, there is a
possibility of taking a different view than that of the trial Court, the
appellate Court should refrain from disturbing the findings and
conclusion recorded by the lower court. In view of the settled law,
the High Court ought not have interfered with the order of acquittal
passed by the trial Court. But by setting aside the order of acquittal13
passed by the trial Court, the High Court has committed a gross
illegality   by   convicted   the   appellants—accused   thereby   causing
miscarriage of justice which invites interference of this Court. In
support   of   their   arguments   learned   counsel   appearing   for   the
accused—appellants   relied   on   the   judgments   of   this   Court   in
Mahavir Singh vs. State of Madhya Pradesh, (2016) 10 SCC 220,
L.L.  Kale  Vs.  State  of  Maharashtra  &  Ors.  (2000) 1 SCC 295,
Joginder Singh & Anr. Vs. State of Haryana (2010) 15 SCC 407
and Nankaunoo Vs. State of U.P. (2016) 3 SCC 317.
12. On the other hand, learned counsel appearing for the
State—Mr.   Nishant   Ramakantrao   Katneshwarkar,   supported   the
impugned judgment and submitted that the learned trial Judge
disbelieved the evidence of prosecution witnesses for no valid and
reasonable cause. The minor discrepancies in the depositions have
been given undue importance to pass the acquittal order against
the accused, who in a brutal manner dragged the deceased to the
fields and assaulted him with sticks, axe and sword. PW1—Chanda,
wife of the deceased, tried her best to save her husband praying at14
the accused to show mercy, but all the accused in pursuance of
their   common   object,   attacked   the   deceased   indiscriminately
leading to his death. The High Court has correctly assessed the
facts and circumstances of the case and there was no legal error in
the impugned order seeking indulgence of this Court.
13. We have given our consideration to the material placed
before us and the arguments advanced by the learned counsel on
either side. 
14. As the trial court and High Court, having appreciated the
evidence on record, has come to diametrically opposite conclusions,
mandating herein to observe certain witness statements which may
have   an   important   bearing   in   this   case.   In   the   processes   of
appreciating the evidence at the appellate stage, we need to keep in
mind the views of this court as expressed in Tota Singh and Anr.
v. State of Punjab, 1987 CriLJ 974 ­
"The High Court has not found in its judgment that
the reasons given by the learned Sessions Judge for
discarding the testimony of PW2 and PW6 were either15
unreasonable or perverse. What the High Court has
done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal
merely on the ground that as a result of such reappreciation,
the High Court was inclined to reach a
conclusion   different   from   the   one   recorded   by   the
learned   Sessions   Judge.   This   Court   has   repeatedly
pointed out that  the  mere fact  that  the  Appellate
Court   is   inclined   on   a   re­appreciation   of   the
evidence   to   reach   a   conclusion   which   is   at
variance  with   the   one   recorded   in   the   order   of
acquittal   passed   by   the   Court   below   will   not
constitute   a   valid   and   sufficient   ground   for
setting  aside  the  acquittal.  The jurisdiction of the
Appellate Court in dealing with an appeal against an
order of acquittal is circumscribed by the limitation
that no interference is to be made with the order
of   acquittal   unless   the   approach   made   by   the
lower  Court  to  the  consideration  of  the  evidence
in the case is vitiated by some manifest illegality
or the conclusion recorded by the Court below is
such which could not have been possibly arrived
at by any court acting reasonably and judiciously
and   is,   therefore,   liable   to   be   characterised   as
perverse.  Where   two   views   are   possible   on   an
appraisal of the evidence adduced in the case and the
court below has taken a view which is plausible one,
the Appellate Court cannot legally interfere with an
order of acquittal even if it is of the opinion that the
view taken by the Court below on its consideration of
the evidence is erroneous."16
15. In  Ramesh  Babulal  Doshi  v.  State  of  Gujarat, 1996
CriLJ 2867, this Court observed:
“This Court has repeatedly laid down that the mere
fact that a view other than the one taken by the trial
Court can be legitimately arrived at by the appellate
Court on reappraisal of the evidence cannot constitute
a valid and sufficient ground to interfere with an order
of acquittal unless it comes to the conclusion that the
entire approach of the trial Court in dealing with the
evidence   was   patently   illegal   or   the   conclusions
arrived at by it were wholly untenable. While sitting in
judgment over an acquittal the appellate Court is first
required to seek an answer to the question whether
the  findings  of the  trial Court  are  palpably wrong,
manifestly erroneous or demonstrably unsustainable.
If the appellate court answers the above question in
the   negative   the   order   of   acquittal   is   not   to   be
disturbed.”
16.  Keeping the aforesaid observations in mind, we may note
some statements of the witnesses, who have deposed before the trial
court concerning the incident. PW­1 [wife of the deceased], has
deposed   that   she   came   to   know   about   the   scuffle,   from   her
husband, which took place between her deceased husband and
accused no. 4 prior to the occurrence of the incident. She further
stated that while she was cooking the dinner for her husband,17
accused no. 4, 11, 12, 13, 14, 15 and absconding accused (Raju)
entered her house. The accused dragged her husband outside onto
the courtyard. She states that she saw accused no. 11 was armed
with an axe, accused no. 13 was armed with a sword and accused
no. 16 was holding an iron pipe. She further states that rest of the
accused   were   armed   with   sticks   and   in   total   there   were   15
assailants. Her husband was dragged to the courtyard of Vinayak
Bhalekar, whose house is said to be after three to four houses. At
that spot, they again gave some beating to the deceased. PW­1
states that she was continuously requesting the assailants to spare
the life of her husband. At this instant, accused no. 11 is said to
have threatened PW­1 so that she may not witness the incident.
Accordingly, she ran to the cattle shed of one Sudha Bhalekar, who
was attacked by accused no. 14 in the meantime, and remained
hidden for about two hours out of fear. Thereafter, PW­1 went to the
house of Harshwardhan Balekar, who first accompanied her to the
district head­quarters at Amravati, wherein she informed the family
of   the   deceased   (parents­in­law   and   the   brother­in­law)   and
thereafter went to the Amravati police station. As they were advised18
to register the case in Nandgaon Police Station, they came back to
Nandgaon police station to register the complaint.
17. During the cross­examination she avers that PW­3, 4 and
5 were closely related to her and the accused were also related inter
se. Concerning the relationship between the accused no. 4 and the
deceased,   she   states   that   the   relationship   between   them   were
cordial. Lastly, she could not assign any reason as to why the
earlier scuffle between her deceased husband and accused no. 4
was not written in the FIR registered by her.
18. PW­2 avers that on the day of the incident, while he was
watching   television   from   inside   the   house,   he   heard   some
commotion taking place outside his house. When he went outside
the house, he saw that the accused were beating the deceased with
weapons such as axe, pipe, swords and stick. he states that he saw
accused no. 11 armed with an axe, accused no. 4 armed with a
bamboo stick, accused no. 13 armed with a sword and accused no.
16 was holding an iron pipe. As he was afraid, he did not go behind19
the assailants. During the cross examination, he avers that there
might have been more than twenty persons.
19. PW­3,   states   that   he   saw   the   accused   giving   severe
beating to the deceased with sticks, swords, iron pipes and axe. He
states that he saw accused no. 16, 15 and 11 dragging the deceased
towards the school and he did not follow the accused out of the fear
and on the following day, deceased body was found in the field of
one Yeshwant Sawai. During the cross examination, he states that
the deceased died in front of his house, due to severe beating given
by   the   accused.   Moreover,   he   admits   that   the   deceased   is   his
relative.
20.  It may be noted that PW­4 and 5 have deposed to the
same effect, concerning the incident. They have further admitted
that they were related to the deceased. At this point it may be
relevant   to   notice   the   witness   statement   of   the   doctor,   who
conducted the post­mortem [PW­7]. Concerning the stick blows on
the body of the deceased, she notes as under­20
‘…Contusions and lacerations are possible in case
a person is beaten by sticks or from pipe. I did not
find any lacerated wound or contusion sustained by
the deceased and as such I did not mention such
injury in P.M. Note….’
Concerning the cause of death, PW­7 states as under­
‘The injury sternum as described in Column No.
20 is possible in case a person fall down on hard
surface. Because of loss of blood due to injury the
deceased went into the shock and which resulted in
his death. The deceased died due to loss of blood.
Because of loss of blood the heart chambers were
found   empty   and   other   organs   were   found   pale.
Vital organs were intact. I did not find any injury
to   any   vital  part  of   the  body.  Loss  of   blood   is
gradually   loss   of   blood   and   it  may   take   some
time. In case of timely medical treatment person
may survive. Hands and legs are non­vital part of
the body. Because of the amputation of hand and
because of amputation of leg or both person may
not die. It is not always possible that a person may
die   because   of   incised   wounds   No.   1,   2   &   5   as
described in Coloum No. 17’ [sic.]
[emphasis supplied]
21. PW­10 was stationed as the head constable of Nandgaon
police   station   at   the   relevant   time   when   PW­1   registered   the21
complaint. It may be beneficial for the discussion to observe the
cross examination of the aforesaid witness, as under­
…3. The complainant PW1­Chanda did not state
in   her   complaint   the   fact   that   Accused   No.4
addressed   abuses   to   her   husband   when   her
husband demanded money to Accused No.4. The
PW1­Chanda did not state in her complaint the fact
that Accused No.13 and Accused No.15 arrived and
they entered into her house. PW1­Chanda did not
state in her complaint the fact that she requested
the assailants not to beat her husband. The PW1­
Chanda did not state in her report Exh. 55 the fact
that Accused No.11 was armed with an axe, PW1­
Chanda did not state in her report Exh. 55 the fact
that   the   Accused   No.13   was   holding   sword.   The
PW1­Chanda did not state in her report Exh.55 the
fact that Accused No. 15 was holding a pipe. The
PW1­Chanda did not state in her report Exh.55 the
fact that the rest of the Assailants­Accused were
holding sticks in their hands. PW1­Chanda did not
state   in   her   complaint   Exh.55   the   fact   that   the
Accused­Assailants   had   beaten   to   her   husband
shamrao in the courtyard….
From the aforesaid witness, it is clear that the FIR did not consist of
all   those   facts   which   were   subsequently   deposed   by   PW­1   and
others before the court.22
22.  It may not be out of context to mention that the formal
witnesses   concerning   seizure   such   as   PW11   and   13   have   not
supported the case of prosecution in entirety.
23. Before we proceed to analysis of the case, we must first
focus on the aspect concerning the standard the High Court has to
apply, while hearing a case against an acquittal order of the trial
court. In the case on hand, the trial court, followed by a full­fledged
trial, comes to the conclusion and by cogent reasoning acquits the
accused. In such a case the appellate Court is further burdened
with the task of reaffirming the innocence of the accused. In such
cases, the appellate Court is expected to be very cautious and its
interference with the order of acquittal is called for only when there
are compelling reasons and substantial grounds. In other words,
the High Court has full power to review the evidence upon which an
order of acquittal is founded, yet the presumption of innocence of
the accused being further reinforced by his acquittal by the trial
Court, the findings of that Court which had the advantage of seeing
the witnesses and hearing their evidence can be reversed only for23
very substantial and compelling reasons [refer Surajpal Singh &
Ors. v. The State, 1952 CriLJ 331].
24. From the facts and circumstances of this case, we are
called upon to examine, whether the High Court was justified in
upsetting the findings of the trial court and whether there were
compelling reasons for the High Court to set aside the order of
acquittal and convict the accused appellant of culpable homicide
amounting to murder?
25.  We may note that out of eleven circumstances which the
trial court has relied upon to find that the prosecution case was not
proved beyond reasonable doubt, we are of the opinion that we need
to   concentrate   on   four   of   those   circumstance,   which   may   be
sufficient, to portray that the case at hand is not proved beyond
reasonable doubt. 
26. There is no dispute as to the fact that the prosecution
relies on the circumstantial evidence to prove the case. It may be24
noted   that,   the   value   of   circumstantial   evidence   rests   in   its
accumulative   effect,   that   is   to   say,   while   a   single   piece   of
circumstantial evidence may only slightly increase the likelihood
that the accused is guilty, several such evidences taken together
may carry enough probative force to justify the conviction, if such
circumstantial   evidence   forms   an   unbroken   chain   of   events
resulting in only one hypothesis so canvassed.  
27. Coming back to the appreciation of the evidence at hand,
at the outset, our attention is drawn to the fact that the witnesses
were inter­related, and this court should be cautious in accepting
their   statements.   It   would   be   beneficial   to   recapitulate   the   law
concerning the appreciation of evidence of related witness. In Dalip
Singh & Ors. v. State of Punjab, (1954) 1 SCR 145, J. Vivian Bose
for the bench observed the law as underA
witness is normally to be considered independent
unless he or she springs from sources which are
likely to be tainted and that usually means unless
the witness has cause, such as enmity against the
accused, to wish to implicate him falsely.25
Ordinarily, a close relative would  be the last to
screen   the   real   culprit   and   falsely   implicate   an
innocent person. It is true, when feelings run high
and there is personal cause for enmity, that here is
a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty,
but foundation must be laid for such a criticism
and the mere fact of relationship far from being a
foundation is often a sure guarantee of truth.
However,   we   are   not   attempting   any   sweeping
generalisation. Each case must be judged on its
own   facts.   Our   observations   are   only   made   to
combat what is so often put forward in cases before
us as a general rule of prudence. There is no such
general rule. Each case must be limited to and be
governed by its own facts.
28.  In  Masalti  v.  State  of  U.P., (1964) 8 SCR 133, a fiveJudge
Bench of this Court has categorically observed as underThere
  is  no  doubt  that  when  a  criminal  Court
has   to  appreciate  evidence  given  by  witnesses
who are partisan or interested, it has to be very
careful   in  weighing  such  evidence.  Whether  or
not   there   are   discrepancies   in   the   evidence;
whether  or  not  the  evidence  strikes  the  Court
as genuine; whether or not the story disclosed
by   the   evidence   is   probable,   are   all   matters
which must be taken into account.
But   it   would,   we   think,   be   unreasonable   to
contend   that   evidence   given   by   witnesses
should be discarded only on the ground that it
is evidence of partisan or interested witnesses.
Often enough, where factions prevail in villages
and   murders   are   committed   as   a   result   of26
enmity  between  such factions,  criminal  Courts
have to deal with evidence of a partisan type.
The  mechanical   rejection  of   such  evidence  on
the   sole   ground   that   it   is   partisan   would
invariably lead to failure of justice.
No hard and fast rule can be laid down as to how
much   evidence   should   be   appreciated.   Judicial
approach has to be cautious in dealing with such
evidence; but the plea that such evidence should
be   rejected   because   it   is   partisan   cannot   be
accepted as correct.
(emphasis supplied)
29. In Darya Singh and Ors. v. State of Punjab, (1964) 3
SCR 397, this Court held that evidence of an eye witness who is a
near relative of the victim, should be closely scrutinized but no
corroboration   is   necessary   for   acceptance   of   his   evidence.   In
Harbans  Kaur  &  Anr.   v.  State  of  Haryana, 2005 CriLJ 2199,
this Court observed thatThere
is no proposition in law that relatives are
to be treated as untruthful witnesses. On the
contrary, reason has to be shown when a plea
of   partiality   is   raised   to   show   that   the
witnesses had reason to shield actual culprit
and falsely implicate the accused.27
30. The last case we need to concern ourselves is the case of
Namdeo   v.  State  of  Maharashtra, (2007) 14 SCC 150, wherein
this Court after observing previous precedents has summarized the
law in the following mannerIt
  is   clear   that   a   close   relative   cannot   be
characterised as an 'interested' witness. He is a
'natural' witness. His evidence, however, must
be scrutinized carefully. If on such scrutiny,
his   evidence   is   found   to   be   intrinsically
reliable,   inherently   probable   and   wholly
trustworthy   conviction   can   be   based   on   the
'sole'   testimony   of   such   witness.   Close
relationship of witness with the deceased or
victim is no ground to reject his evidence. On
the   contrary,   close   relative   of   the   deceased
would normally be most reluctant to spare the
real culprit and falsely implicate an innocent
one.
31. From the study of the aforesaid precedents of this court,
we may note that whoever has been a witness before the court of
law, having a strong interest in result, if allowed to be weighed in
the same scales with those who do not have any interest in the
result, would be to open the doors of the court for perverted truth.
This sound rule which remain the bulwark of this system, and
which determines the value of evidence derived from such sources,
needs to be cautiously and carefully observed and enforced. There
is no dispute about the fact that the interest of the witness must
affect   his   testimony   is   a   universal   truth.   Moreover,   under   the
influence of bias, a man may not be in a position to judge correctly,
even if they earnestly desire to do so. Similarly, he may not be in a
position   to   provide   evidence   in   an   impartial   manner,   when   it
involves his interest. Under such influences, man will, even though
not consciously, suppress some facts, soften or modify others, and
provide favorable color. These are most controlling considerations in
respect to the credibility of human testimony, and should never to
be overlooked in applying the rules of evidence and determining its
weight in the scale of truth under the facts and circumstances of
each case.
32. The prosecution has heavily relied on the statement of
PW1   that   the   accused—appellants   assaulted   her   husband   with
deadly weapons on his hands and legs while dragging him for about
2 kms from his house to the fields, which led to his death. The
weapons used in the crime were stated to be sword, sticks, axe and29
pipe. Admittedly, there were no bloodstains found on any of the
weapons   allegedly   recovered   from   the   accused.   The   allegation
particularly levelled was that the accused carried the assault on the
deceased at three places i.e., in front of the house of the deceased
and near the house of PW3—Vinayak Bhalekar and at the fields of
Yeshwant Thawale. However, in their depositions PWs 2, 4 and 5
did not mention about such assault on the deceased in front of
Vinayak Bhalekar house. It appears from the material that there are
no eyewitness who had seen the accused attacking the deceased in
the fields of Yashwant Thawale. The statements of PW3—Vinayak
Bhalekar also appears to be not consistent throughout. At one point
of time, he deposed that the deceased had died in front of his
house.   Altogether   a   different   statement   was   given   to   the
investigating authorities and in the Court. Similar is the case of
PW4—Sudha,   who   has   made   improvements   as   regards   to   the
assault on the deceased. Also there were varying statements by the
prosecution witnesses as regards PW4—Sudha on the aspect of
receiving the blow.  30
33. The deposition of PW4—Sudha Bhalekar shows that she
had seen the involvement of A­1, A­4, A­11, A­13, A­14 and A­16 in
the   crime.   Though   she   stated   that   she   could   recognize   the
assailants by their face as she does not know their names, yet test
identification parade was not conducted which is fatal to the case of
prosecution. In their depositions PWs 2, 3 and 5 gave contradictory
statements as to the involvement of number of accused persons in
the crime and also about noticing the accused who dragged the
deceased   while   assaulting   him   and   dragging   towards   school
whereas PWs 1 and 4 were silent on this aspect. There were also
contradictory statements by prosecution witnesses as regards the
availability of light at the time of occurrence.  According to PW3—
Vinayak, husband of PW4—Sudha, whose house is the last in the
mohalla and situated at a distance of four other houses from the
house of deceased, the incident took place at 9 pm. The way behind
his house goes to the school and there is a tamarind tree in front of
his house and the house of Shamrao is not visible by sitting in the
courtyard of his house. In his cross­examination, he denied to have
deposed to police that the house of deceased Shamrao is situated in
the rear side of his house. He further stated, there is ‘L’ type turn
from his house to the house of deceased which is not visible from
his courtyard. According to him, deceased Shamrao died in front of
his house and on the next day, he saw the dead body of Shamrao in
the field.
34.   Now coming to the facts of the case, PW1 (wife of the
deceased)   has   not   witnessed   the   chopping   of   the   hand,   which
resulted in the ultimate death of her husband. It is prudent for this
Court to not believe in absence of cogent evidence concerning the
culpability of the accused herein, as her evidence is ridden with
apparent internal contradictions and inconsistencies.
35. Due to the nature and quality of evidence involved in this
case, the prosecution relies on the motive to strengthen the case by
bringing in the earlier scuffle, wherein the deceased had slapped
the Accused no. 4. This Court has on number of occasions has
expressed   a   general   disdain   towards   motive   in   direct   evidence
cases1
.   On   the   other   hand   this   Court   has   never   approved   the
1 Hari Shanker Vs. State of U.P., (1996) 9 SCC 40.32
extreme position as portrayed in some English cases2
 which is best
explained by Jerome Hall, when he stated ‘[h]ardly any part of penal
law is more definitely settled than that motive is irrelevant’.
3
 We may
note that the law in India is now well settled that in a case of
circumstantial evidence, motive has a role to play
, but to dislodge
prosecution’s case solely based on lack of motive would amount to
giving credit to this factor, where it is not due.5
 The motive behind
the accused assaulting the deceased was said to be the quarrel
during   which   the   deceased   had   slapped   Accused   No.   4   near   a
grocery shop in the village. Incidentally, prosecution could also not
prove the same by examining the independent witness present at
the grocery shop, though as many as 19 witnesses were examined
by the prosecution. PW10—Shrikrishna, Head Constable of the PS
Nandgaon Peth who reduced the oral complaint of PW1 into writing,
categorically   stated   that   PW1   had   also   not   mentioned   about
previous quarrel at the time of lodging of complaint. There were,
undoubtedly lot of improvements in the statement of PW1 from the
2 Chandler v. DPP, [1964] AC 763
3 Jerome Hall, General Principles of Criminal Law 88 (2d ed. 1960).
4 Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90) and State of
U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73.
5 Bipin Kumar Mondal v. State of West Bengal, (2010) 12 SCC 91.33
stage   of   complaint   to   her   examination­in­chief.     Moreover,   the
evidence of PW1 concerning the quarrel is barred for being hearsay
evidence. 
36. Alternatively, the prosecution has alleged that motive for
the   crime   was   that   the   accused   party   belongs   to   non­SC/ST
community whereas the victim was belonging to SC community.
But, in the opinion of the trial Court, the prosecution could not
prove that the deceased belong to Scheduled Caste and accused
were from non­Scheduled Caste or Tribe and the prosecution has
failed to prove any charge against the accused including the charge
under   Section   3(i)(x)   and   2(v)   of   the   Scheduled   Castes   and
Scheduled   Tribes   (Prevention   of   Atrocities)   Act.   As   against   that
charge, the High Court also confirmed the view taken by the trial
Court, which in other words proved the prosecution version to be
wrong.
37. Now we need to concentrate on the other aspects of the
case   such   as   the   contradictions   in   the   evidence   of   prosecution34
witnesses as to the number of accused persons involved in the
alleged crime and also in respect of their identification thereby the
very purpose of the prosecution in proving the common object of
unlawful assembly gets defeated to attract the provisions of Section
149, IPC. An accused is, of course, vicariously guilty of the offence
even if he is not directly indulged in the commission of offence but
committed by other accused, in case he is proved to be a member of
unlawful assembly sharing its common object.  It is evident that as
per PW1 (wife of the deceased)—complainant, in the FIR (Ext. 55)
the number of persons mentioned by her, who have entered into
their house was four, while about 20 to 25 persons were assembled
outside the house and all of them assaulted the deceased. However,
in the examination­in­chief she deposed that there were in all 15
assailants who attacked her husband. Though she failed to name
the assailants in her deposition she made out a point that she knew
all the assailants. According to PW10—Shrikrishna, the author of
complaint, PW1 did not state about entry of accused Nos. 13 and 15
into her house. There was also no mention by her at the time of
lodging of FIR about carrying an axe by A­11, a sword by A­13, a35
pipe by A­15 and sticks by other accused. Going by the material on
record, it can be said that there was no satisfactory explanation on
the part of PW1 for omissions in the FIR and improvements before
the Court.
38. PW11—Sagar, a panch witness of seizure of bloodstained
clothes of the accused Nos. 1 to 7, did not support the prosecution
case. According to him, police called him to the police station and
obtained his signature. Similarly, the seizure is doubtful in the case
of clothes pertaining to accused No. 11 to which PW13—Gunwant
was witness who stated that he had seen those clothes for the first
time in the village panchayat office and he had signed the paper at
the   instance   of   police   without   knowing   the   correctness   of   its
contents.   Going   by   the   material   on   record,   the   correctness   of
seizure of clothes of other accused persons also do not inspire
confidence. 
39. It is also clear from the record that PW6—Sukhdev who
proved   the   recovery   of   weapons   at   the   instance   of   accused—36
appellants,   could   not   point   out  his  signature   on   the   respective
disclosure statements and seizure panchnamas. He also admitted
that Ext.72 (memorandum) and Ext. 73 (seizure panchnama) does
not bear his signature. PW9—Ananda Ramteke deposed that after
recovering sticks from the houses of accused Nos. 1 to 7, they
returned to the village panchayat office where almost all the papers
were   scribed.   It   is   also   important   to   note   that   based   on   the
Chemical Analysis report, those sticks cannot be considered to be
incriminating articles as there were no blood stains on those sticks.
In   the   same   way,   the   sword   and   axe   allegedly   recovered   from
Accused Nos. 13 and 11 respectively also do not have bloodstains.
In these circumstances, the prosecution cannot be said to have
proved the fact that the palm of the deceased has been amputated
by the accused with those weapons.
40. In   the   opinion   of   Dr.   Pushpa   Sadhawani—PW7,   who
conducted postmortem on the body of the deceased, the cause of
the death was due to heavy loss of blood owing to the amputation of
his hand. However, his vital organs were found to be normal and
there was no injury to the vital organs. There were incised wounds
over dorsal aspect of right amputated wrist and forearm and lower
part of the leg. PW7 has specifically mentioned that there was no
laceration or contusion sustained by the deceased and opined that
had there been timely medical treatment, the deceased would have
survived. At the same time she made it clear that in case a person
is beaten up with sticks and iron pipe, as alleged by the prosecution
in the present case, contusions and lacerations are possible. In her
cross­examination,   the   Doctor   also   revealed   that   because   of
amputation of hand and leg or both, a person may not die. Thus, in
totality,   the   medical   evidence   is   not   corroborating   with   the
prosecution’s case.  
41. It is quite surprising that PW1—Chanda who witnessed
the horrific assault on her husband, remained hidden in the cattle
shed   for   about   two   hours   and   then   went   to   the   house   of
Harshwardhan Bhalekar to whom she had narrated the incident.
After that, both of them, without searching for the deceased went to
the house of PW1’s in­laws at Amravati. Then they visited the office
of Superintendent of Police and then they went to the police station
to lodge the complaint. Ironically, the said Harshwardhan Bhalekar
who could have been a prime witness has not been examined. The
conduct of PW1 and non­examination of such an important witness
Harshwardhan   Bhalekar,   weakens   the   prosecution   case.   At   the
same time, there was no proper explanation forthcoming for what
purpose they visited the office of Superintendent of Police, instead
of searching for the deceased or going to police station to lodge
complaint. As per the evidence of PWs 1, 2 and 3 Laxman Bhalekar,
Bhaurao, Arun Bhalekar and Namdeo Bhalekar are neighbours of
the deceased living in the same vicinity, but none of them was
examined. Another laches in the prosecution case is that in the FIR
it   was   mentioned   that   one   Dhanjay   Sontakke   and   Janardhan
Alekar had also seen the accused assaulting the deceased, but they
too were not examined.  Similarly, one Anant Bhurbhure who first
found the dead body of the deceased in the fields of Yashwantrao,
was also not examined. It is clear that all those persons, especially
neighbours   of   the   deceased,   who   witnessed   the   important
circumstances and who could be vital independent witnesses have
not   been   examined   by   the   prosecution.   There   is   no   convincing
explanation forthcoming from the prosecution side.
42. Another facet that creates doubt on the prosecution story
is   that   PW5—Maroti,   the   real   brother   of   PW2—Narendra   and
nephew of PW4—Sudha, in his cross­examination (Ext.70) differed
with the statement recorded by police and marked ‘A’ that he and
his  brother  (PW2)  saw  the  deceased  lying in   front  of  the  door.
According to him he did not say that fact, police arrived in the
village next day morning at 8 am, and he went to the field along
with   police   at   10   am.   PW3—Vinayak   husband   of   PW4—Sudha,
made a statement that he had seen the dead body in the field of
Yashwant Thawale. PW2—Narendra has also stated that at about
9.30 am on 20.6.1995, he along with other villagers found the dead
body of the deceased in the said field. We notice that in the midst of
several contradictory statements among the prosecution witnesses,
there   is   no   proper   explanation   on   record   for   PW1   and   police
searching for the deceased at the wells and nullahs of the village,
instead of searching around the school, as per the prosecution story40
PWs 2, 3 and 5 were fully aware that the deceased was dragged
towards school. Moreover, looking at the ambiguous narration of
sequences described by the witnesses, the chain of events in the
case cannot be said to have been properly brought on record by the
prosecution. It is always the duty of the Court to separate chaff
from the husk and to dredge the truth from the pandemonium of
Statements. It is but natural for human beings to state variant
statements due to time gap but if such statements go to defeat the
core of the prosecution then such contradictions are material and
the Court has to be mindful of such statements [See:  Tahsildar
Singh v. State of U.P., AIR 1959 SC 1012].  
43. We have also found from the impugned judgment that
the   High   Court   has   misconstrued   certain   aspects   of   the   case.
According to PW2—Narendra the incident occurred at about 9 p.m.
on 19.6.1995. In the FIR also the time was mentioned as 9 p.m. But
the   High   Court   in   its   judgment   observed   “insofar   as   the
submissions regarding the availability of light is concerned, we find
that the incident took place at about 7.30 p.m. in the village in the
month of June and looking to the availability of light in the month
of June in Vidarbha region, we have no hesitation in holding that
the   eyewitnesses   had   sufficient   light   to   identify   the   accused
persons”. It is clear from the record that the alleged incident has
occurred at 9 p.m. and not at 7.30 p.m. as assumed by the High
Court,   and   there   were   also   no   eyewitnesses   to   the   alleged
amputation of the hand of deceased and causing his death.
44.  At the conclusion of arguments, it is informed at the Bar
that the trial Court had conducted separate trial in respect of Raju
—Accused No. 16, who was earlier absconding, and acquitted him
of   all   the   charges   and   the   State   has   not   preferred   any   appeal
against his acquittal. We have also noticed that PWs 1, 2 and 3
have given contrary statements at the subsequent trial in Special
(Atrocities) Case No. 12 of 2008 held against Raju—Accused No. 16,
deviating from what they deposed in the present case.
45. Taking   note   of   the   foregoing   shortcomings   and
discrepancies   in   the   prosecution   case   coupled   with   the42
improvements and contradictions in the statements of prosecution
witnesses, it cannot be said that the accused persons had really
formed into an unlawful assembly and carried out an assault on the
deceased that too with a view to kill him, so as to attract the
provisions of criminal law. In the facts and circumstances of the
case, it is abundantly clear that the guilt of the accused persons
was not proved beyond reasonable doubt. We are of the considered
view that the trial Court had dealt with the case in a fool­proof
manner by drawing out 11 important circumstances and delivered a
well reasoned judgment thereby acquitting the accused, with which
the High Court ought not to have interfered. In our view, there are
no compelling reasons and substantial grounds for the High Court
to interfere with the order of acquittal passed by the trial Court.
Added to the above, we are informed that the accused have already
undergone about three years' of imprisonment before they were
enlarged on bail. 
46. Keeping in view the substratum of the prosecution case
and   the   material   available  on   record,  we   are   of  the   considered
opinion that the prosecution has miserably failed to prove the guilt
of   accused   beyond   reasonable   doubt.   In   the   aforementioned
circumstances,  we allow  these appeals, set aside the  impugned
order passed by the High Court and restore the judgment and order
passed by the trial Court in respect of the appellants before us.
Resultantly,   their   bail   bonds   stand   discharged.   Pending
applications, if any, shall also stand disposed of.
…………......................J.
 (N.V. RAMANA)
..................................J.
        (S. ABDUL NAZEER)
NEW DELHI,
APRIL 26, 2018.
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