20 November 1996
Supreme Court
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GAJANAN. Vs STATE OF MAHARASHTRA

Bench: A.S. ANAND,K.T. THOMAS


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PETITIONER: GAJANAN.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       20/11/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellant  alongwith Dnyandeo  were  tried  for  an offence under  sections 302/34  IPC by  the learned Sessions Judge, Buldhana in respect of an occurrence which took place on 10th  September,  1984  in  which  Suryabhan  died  after receipt of a blow on his head resulting in multiple fracture of the scalp bone. The trial court found that Gangubai, PW.2 and Ukanda,  PW.3, who  claimed to  have seen  the  deceased being "dragged"  (pulled) by the appellant after hitting him on the  head with  a heavy  stone, had actually not seen the occurrence or  any part  thereof and  their evidence did not inspire confidence.  The trial  court also  referred to  the medical evidence  provided by  Dr. Kashinath  Motiram, PW.1, and found  that the  account given  by PW.2  and PW.3 was in conflict with  the medical  opinion. The trial court further opined that  the prosecution had introduced letter Ext.P.22, the alleged  extra judicial confession of the appellant with a view  to buttress  the prosecution  case. It was held that the motive  as alleged  by  the  prosecution  had  not  been established and  that the  occurrence did  not take place in the manner  and at  the place  suggested by the prosecution. The trial  court, on  the basis  of these findings acquitted the appellant  and his  co-accused. The  High  Court  on  an appeal by  the State against acquittal reversed the findings in so far as the appellant is concerned and convicted him of an offence  under section  302  IPC  and  sentenced  him  to undergo life  imprisonment, but  maintained the acquittal of the co-accused  since learned  counsel for the State did not press the appeal against his acquittal.      We have  heard learned  counsel  for  the  parties  and critically analysed the evidence on the record.      The manner  in which  the High Court has dealt with the appeal against  acquittal has  left much  to be desired. The High Court  treated PW.2  and PW.3  as if  they were the eye witnesses of the occurrence and opined that the observations of the trial court "that there is no direct evidence in this case is  obviously wrong".  In the  words of  the High Court "merely because  these witnesses  did  not  see  the  actual assault  by   stone,  their  clinching  evidence  cannot  be discarded". We  fail to  understand  the  justification  for

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criticism of  the trial  court as noticed above. If the High Court itself  found that  PW.2 and  PW.3 had  not  seen  the actual assault  on the deceased how they could be treated as providing  direct   evidence  of   assault  is  not  at  all intelligable. Similarly, while dealing with letter Ext.P.22, the High  Court, without  at all  dealing with  the  reasons given by the trial court to dissbelieve the evidence of PW.7 and the recovery of the letter Ext.P.22, opined that one sentence in that letter amounts to confession and went on to rely upon  the same as a piece of extra judicial confession. The High  Court apparently  ignored that  there was no proof worth the name on the record to show that letter Ex.P.22 had been  written   by  the  appellant.  The  appellant  in  his statement under section 313 Cr.P.C. denied the authorship of the letter.  PW.7 who  claimed to  have received  the letter from the  appellant, was  working as  a  labourer  with  the appellant and on his own admission he had never received any letter from  the appellant  nor had he any other occasion to see his  handwriting. How  then  could  PW.7’s  evidence  be considered as  sufficient to prove that it was the appellant and the appellant alone who had written letter Ext.P.22? The prosecution led  no other  evidence to prove the handwriting of the  appellant.  No  expert  was  examined  either.  Even otherwise, reading  the letter Ext.P.22 as a whole we do not find any  extra judicial confession to have been made by the appellant, assuming  for the  sake  of  arguments  that  the letter was  written by  the appellant.  The High  Court  was obviously in  error in  error in  holding that  Ext.P.22 was written by  the appellant  or that the letter amounted to an extra judicial confession.      The High  Court also  appears to  have overlooked  some glaring  infirmities   in  the   prosecution  evidence.  The occurrence, according  to the prosecution, took place in the field of  Govind Shinde.  The appellant  after  causing  the injury is  alleged to  have dragged (pulled) the body of the seriously injured  deceased for  a distance of about 50 feet and left  it in the filed of Rabbani. The reason for leading this evidence  is not far to seek. Unless this excercise was done by  the appellant, PW.2 and PW.3 who claim to be on the track  road   could  not  have  witnessed  the  dragging  or identified the  appellant. There was no need for the body to be dragged  from the  field of  Govind Shinde  to  Rabbani’s field by  the appellant  except  to  enable  himself  to  be identified. It  appears that  the story  of dragging  of the deceased was  introduced so  as to  enable PW.2, wife of the deceased, to  claim to  have seen the appellant running away after dumping  the body  in Rabbani’s  fields. Coupled  with this  is   yet   another   tell   tale   circumstance.   The investigating officer  in the inquest report, in his zeal to support the  story  of  dragging,  showed  that  there  were dragging marks/  abbrasions etc. on the legs and other parts of the  body of  the deceased. PW.1, who, performed the post mortem examination,  however, clearly  deposed that  no such marks were  found on  the body  of  the  deceased  and  that besides the  injury on  the head,  no other  injury had been found on  the  body  of  the  deceased.  PW.1  categorically asserted that  had the  body been  dragged  and  brought  in contact  with   rough  surface   it  was  bound  to  sustain abbrasions but  none was  found on the body of the deceased. The manner  in which  the  investigating  officer  tried  to introduce the  story of  dragging  and  the  extra  judicial confession through  Ext.P.22, shows  that the  investigation was not  fair and  the High Court failed to take this aspect into consideration.      The trial  court gave  cogent and sufficient reasons to

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acquit  the  appellant.  The  High  Court  should  not  have interfered with  the order  of acquittal  more so  when  the reasons given  by the  trial court were neither perverse nor even unreasonable. The High Court did not dispel the reasons given by  the trial  court  while  upsetting  the  order  of acquittal. Though,  no distinction  is made regarding powers of the  High Court in dealing with appeals against acquittal as well  as against  conviction and  it has  full  power  to review all  the evidence and arrive at independent findings, nonetheless   the  High  Court  should  be  rather  slow  to interfere with  the findings  of the trial court, unless the same  are   perverse  or  otherwise  unreasonable.  Judicial approach in  dealing with a case of appeal against acquittal has to  be cautious, circumspect and careful. Unfortunately, the High  Court overlooked  these  salutory  principles  and interfered  with  a  well  merited  order  of  acquittal  by adopting an  erroneous approach. The order of the High Court under  the   circumstances  convicting  and  sentencing  the appellant for  an offence  under section  302  IPC  to  life imprisonment cannot be sustained.      We, accordingly,  accept this  appeal and set aside the judgment of  the High  Court dated  11th  August,  1989  and maintain the  acquittal of  the appellant as recorded by the trial court.  The appellant,  if in  jail, shall be released from custody forthwith if not required in any other case.