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CASE NO.: Appeal (crl.)  545 of 2007

PETITIONER: Mahesh s/o Janardhan Gonnade

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 10/04/2008

BENCH: P. P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO. 545 OF 2007

Lokeshwar Singh Panta, J.

1.      The appellant has filed this appeal under Section 379 of  the Code of Criminal Procedure, 1973 (for short ’Cr.P.C.") read  with Section 2(A) of the Supreme Court (Enlargement of  Criminal Appellate Jurisdiction) Act, 1970 read with Order 21  Rules XII to XXIX of the Supreme Court Rules, 1966, against  the judgment and order dated 09.03.2007 passed by the  Division Bench of the High Court of Judicature at Bombay,  Nagpur Bench, Nagpur.  By the judgment under challenge, the  High Court has partly set aside the judgment dated  25.01.1990 of the learned Additional Sessions Judge,  Bhandara, passed in Sessions Trial No.44/88 convicting the  appellant under Section 302 of the Indian Penal Code [for  short ’IPC’] and sentencing him to imprisonment for life and to  pay a fine of Rs.1,000/- with default clause to suffer further  six months’ R.I.  The appellant, however, has been acquitted  for the offences punishable under Sections 307 and 324 of the  IPC and Sections 25 and 27 of the Arms Act.

2.      Brief facts, which led to the trial of the accused, are as  follows:-         The appellant-Mahesh and one Sunita were residents of  Bastarwari Ward, Paoni, Tehsil Paoni, District Bhandara.  It  was alleged that they developed love-affair with each other  when they were studying in the school.  The prosecution case  was that the marriage of Sunita was arranged with Sanjay, a  resident of Nagpur.  Before the marriage of Sunita could take  place with Sanjay, the appellant had gone to the house of  Sanjay and disclosed the fact of his past love-affair with  Sunita.  He also threatened Sanjay to face with dire  consequences if he would marry with Sunita.  Sanjay in the  presence of his brother Manik (PW-7) told the appellant that  as the "Sakshagandha" Ceremony had already taken place, he  was left with no other option except to marry with Sunita.  It  was on 12.02.1988 when the marriage between Sunita and  Sanjay took place at Nagpur.  On 27.03.1988, Sanjay and his  wife Sunita both had gone to the house of Nirmalabai for  inviting the latter to attend the marriage of the niece of Sanjay  scheduled to take place at Nagpur.  They had stayed for a  night at the house of Nirmalabai.  On the next day, i.e.  28.03.1988, Nirmalabai, Sanjay (PW-8), his wife Sunita,  Archana (PW-4) - niece of Sunita and Rupesh (PW-16), son of

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the maternal uncle of Sunita, had gone towards the bridge  side of Wainganga River for evening walk.  It was alleged that  around 5.00 or 5.30 in the evening, the appellant along with  his friend Rajesh (PW-5) was seen by the above-said persons  going on a motorcycle to Wainganga River bridge side.  The  appellant on seeing Sanjay, his wife Sunita, Nirmalabai, PWs- Archana and Rupesh at the site of the river, allegedly uttered  "Sali Sunita Yevdha Prem Asun Aaj Ekda Sudha Mazyakade  Pahile Nahi" to PW-Rajesh.  The prosecution alleged that on  the same day, the appellant had kept a gun and one bag at the  house of Laxmibai (PW-2) in the presence of Bilkish Begum  (PW-3), a neighbour of PW-2 on the pretext that he would  collect these articles in the evening for hunting purpose.  The  appellant and PW-Rajesh returned to their respective houses  in the evening.  After some time, the appellant armed with a  gun and knife came back to the place of incident and fire shot  in the back of Sanjay, who, as a result of bleeding injury,  uttered ’Are Bapre’ and then laid on the road side.  Sunita and  Nirmalabai both tried to extend help to injured Sanjay, but the  appellant came near them, pulled Sunita’s hair and stabbed  her on vital parts of head, neck and back.  Sunita collapsed on  receipt of severe injuries. Nirmalabai tried to save her  daughter Sunita, but the appellant struck knife blows to  Nirmalabai also.  The appellant, on seeing the gathering of  people at the scene of occurrence, ran away leaving all the  three injured persons on the spot.   3.        Prakash (PW-1), a private Medical Practitioner, who  lived nearby the place of occurrence, on hearing shouting of  the people, went to the spot.  He spotted Sunita lying with  bleeding injuries on the road side.  He also spotted Nirmalabai  and one man lying in injured condition at a little distance  away from Sunita. PW-Prakash lifted Sanjay, Sunita and  Nirmalabai into a rickshaw and took them to the Government  Hospital, Paoni, where they were admitted by Dr. Laxman (PW- 10), Medical Officer.  Sunita could not survive and succumbed  to the injuries in the evening around 7.15 p.m.  Dr. Laxman  sent a memo to the Police Station, Paoni, regarding admission  of the injured persons.  PW-Sanjay and Nirmalabai were  transferred to Medical College, Nagpur, at about 7.45 p.m. for  proper medical treatment. 4.      PW-Prakash at about 7.30 p.m. lodged a written  complaint (Ext. 28) at Paoni Police Station, on the basis of  which First Information Report bearing Crime No.34/1988  (Ext. 29) was registered by PSI Dhimole (PW-18) under  Sections 302 and 307 of the IPC.  PW-Dhimole started  investigation.  He tried to get the dying declaration of Sunita  and statements of injured Sanjay and Nirmalabai recorded,  but at the relevant time he could not get the services of any  Executive Magistrate readily available for the purpose.  The  Investigating Officer conducted inquest on the dead body of  Sunita.  He arrested the appellant on the same day at about  7.30 p.m.  The appellant allegedly made a disclosure  statement to the Investigating Officer expressing his  willingness to point out the place where a gun and one knife  were concealed by him.  The appellant took the Police and  the Panch witnesses, namely, Vithoba Khobragade (PW-9), a  Legal Practitioner, and Harihar Barsagade (PW-13) to his  house and got the weapons of offence recovered therefrom.    The articles were seized by the Investigating Officer vide  Panchnama (Ext. 43).  5.      Dr. Laxman conducted the post mortem examination on  the dead body of the deceased Sunita and recorded the  following injuries in Post Mortem Report (Ext. 62):-                           1)      Incised wound 3 cm x 1 cm over left forehead.

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2)      Incised wound 3 cm x 1 cm inter-scapular  region to right side.

3)      Incised wound/stab 1 cm x = cm over posterior  side of neck in midline area.

4)      Incised wound 3 cm over Metacarpopharynegeal  joint of right hand.

5)      Incised wound 2 cm 1 cm over middle finger of  right hand.

6)      Incised wound 1 cm x 1 cm  Metacarpopharynegeal joint of right middle finger.

7)      Incised wound over scalp 3 cm x 1cm behind  right ear.

8)      Incised wound 3 cm x 1 cm over occipital region  of skull.

9)      Incised wound 5 cm x 1 cm over mid parietal  region.

Her autopsy vide Exhibit 62 shows following  internal injuries on her person:-     1)      Pleura-perforating injury 1 cm x 1  cm upto apex of left lung.  

2)      Left lung: 2 cm x = cm injury to the  apex of left lung plenty blood collection was  seen in left thoracic cavity.

According to the opinion of the doctor, the cause of death of  Sunita was due to shock due to hemorrhage.

6.      Dr. Laxman examined PW-Sanjay and found the  following injuries on his person:- 1)      Incised wound/stab over abdomen 3 cm x 4  cm in left Hypochondrium.

2)      Fire arm injuries 9 in number on left size back  at renal angle level to upper iliac crest.

3)      Firearm injuries over buttocks.  Two injuries  were on right buttock and one injury was on left  buttock and size of each injury was 1 cm x 1 cm  edges of all the said injuries were inverted.   Black right all around the injuries would of exit  seen.

7.      On examination of Nirmalabai, Dr. Laxman noticed the  following injuries on her person:- a.      Incised wound/stab over left scapular  region 2.5 cm x 1cm bleeding was present.

b.      Incised wound 7 cm x 1 cm over face  right side lateral to lateral angle of eye.

c.      Incised wound 2.5 cm x 1 cm over right  hand above little finger.

d.      Incised wound over right elbow joint 2.5  cm x 1 cm Movements frees.

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8.      The Investigating Officer collected the post mortem report  (Ext. 62) of Sunita, her Injury Certificate (Ext. 54), Injury  Certificate of PW-Sanjay (Ext. 55) and Injury Certificate of PW- Nirmalabai (Ext. 56) respectively.  At the Medical College  Hospital at Nagpur, some pellets of gun fire were taken out of  the body of PW-Sanjay.  The Investigating Officer collected  samples of nails of the appellant in the presence of Panch  witnesses and the same were sent to the Chemical Analyser.    9.        After completion of the investigation and after receipt of  the post mortem report and the Injury Certificates of deceased  Sunita, PW-Sanjay and Nirmalabai and also the Chemical  Analyser’s Reports (Ext. 99, Ext. 100 and Ext. 102) and Report  of Ballistic Expert (Ext. 101).  PW-Dhimole submitted charge  sheet against the appellant in the Court of Chief Judicial  Magistrate, Bhandara.  The Chief Judicial Magistrate  committed the trial of the appellant to the Court of Sessions,  Bhandara, as the offences framed in the charge sheet were  exclusively triable by the Court of Sessions. 10.     The trial of the appellant was conducted by the learned  Additional Sessions Judge, who framed charges against the  appellant for the offences under Sections 302, 307 and 324 of  the IPC and for the offences under Sections 25 and 27 of the  Arms Act.   11.     The prosecution examined as many as 18 witnesses in  support of its case.  In the statement under Section 313 of  Cr.P.C., the appellant has denied his involvement in the crime.   He pleaded that the prosecution witnesses are inimical  towards him.  He admitted that on the day of incident at about  5.00 to 5.30 p.m., he along with PW-Rajesh had gone on a  motorcycle towards river side for evening walk and thereafter   they went to a small hillock in the vicinity and stayed there for  about 1 = hours.  They kept motorcycle near one Hotel, where  they had taken tea and when they were walking on a small  hill, they heard sound of blasting of cracker and thereafter  they returned to their respective houses.  The appellant also  stated that when he came to his house, some people told that  murder had taken place.  The defence of the appellant was  that he was arrested on suspicion by the Police on account of  old quarrel with the grandfather of deceased Sunita and he  pleaded innocence.   12.       The learned Additional Sessions Judge has disbelieved  the testimony of the injured witnesses inter alia on the  grounds: (a) they are close relatives and also interested  witnesses besides they being untrustworthy because their  evidence did not find corroboration from any independent  witnesses though many people were present at the scene of  occurrence, yet none of them was examined by the  prosecution, (b) some of the important witnesses have turned  hostile to the prosecution and (c) the recovery of weapons of  offence has not been supported by the panch witnesses and,  therefore, recorded the judgment of acquittal of the appellant.    Being aggrieved, the State of Maharashtra preferred Criminal  Appeal No.198/90 in the High Court of Judicature at Bombay,  Nagpur Bench.  The Division Bench of the High Court  scrutinized and reappraised the entire oral and documentary  evidence on record and has come to the conclusion that the  learned Trial Judge has not properly appreciated the evidence  on record and therefore, the judgment was set aside and as a  result thereof, the appellant has been held guilty for the  offence of murder of Sunita.  The record shows that during the  pendency of the trial, Nirmalabai had died and, therefore, she  could not be examined as a witness and injuries sustained by  her though sought to be proved through PW-Dr. Laxman, yet  the High Court has noticed that there was no evidence on

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record to prove the period of hospitalization of Nirmalabai and  the nature of medical treatment given to her by the doctor of  Medical College at Nagpur.   In the circumstances, the  appellant has been acquitted of the charge under Section 324  of IPC for causing injuries to Nirmalabai.  As regards the  gunshot injuries caused to PW-Sanjay by the appellant, the  High Court has come to the conclusion that the prosecution  has not established that pellets extracted out of the body of  PW-Sanjay were corresponding to the pellets allegedly fired by  the appellant from the gun recovered from him by the  Investigating Officer.  No Medical Officer from Medical College,  Nagpur, who medically examined PW-Sanjay, has been  examined by the prosecution to prove injuries received by  Sanjay from fire arm.  In these circumstances, the High Court  has given benefit of doubt to the appellant for an offence under  Section 307 of IPC and consequently, no offence under the  Arms Act as well has been found against the appellant.  The  appellant has filed this appeal against his conviction and  sentence imposed upon him by the High Court for the murder  of Sunita.   13.       We have heard learned counsel for the parties who have  taken us through the oral evidence of the material witnesses  as well as the documentary evidence appearing on record. 14.       Mr. Sushil Kumar, learned senior Advocate appearing  for the appellant, first contended that the High Court  committed grave error in interfering with the order of acquittal  passed by the Trial court, only because another view could  have been taken in the matter and the interference of the High  Court in the context of reversal of acquittal is against the well- established principles laid down by this Court in a series of  decisions.   In support of this submission, reliance has been  placed on the decisions of this Court in Tota Singh & Anr.  v.  State of Punjab [(1987) 2 SCC 529] and State of Rajasthan v.  Raja Ram [(2003) 8 SCC 180].  We have gone through the  above-said decisions.  It is not in dispute that this Court by a  series of decisions has laid down the parameters of  appreciation of evidence on record and jurisdiction and  limitations of the Appellate Court while dealing with appeal  against an order of acquittal.  In the case of Tota Singh v. State  of Punjab (supra), it was held as under:- (SCC p.532 para 6) "6. \005 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 a 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." 15.       In State of Rajasthan v. Raja Ram (supra), this Court  held that the golden thread which runs through the web of  administration of justice in criminal cases is that if two views

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are possible on the evidence adduced in the case, one pointing  to the guilt of the accused and the other to his innocence, the  view which is favourable to the accused should be adopted.   The paramount consideration of the court is to ensure that  miscarriage of justice is prevented.  A miscarriage of justice,  which may arise from acquittal of the guilty, is no less than  the conviction of an innocent.  Further, it is held that in a case  where admissible evidence is ignored, a duty is cast upon the  Appellate Court to re-appreciate the evidence in a case where  the accused has been acquitted, for the purpose of  ascertaining as to whether any of the accused committed any  offence or not.  The principle to be followed by the Appellate  Court considering the appeal against the judgment of acquittal  is to interfere only where there are compelling and substantial  reasons for doing so.  If the impugned judgment is clearly  unreasonable, it is a compelling reason for interference.  These  aspects were again highlighted by this Court in Shivaji  Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793];  Ramesh Babulal Doshi v. State of Gujarat [(1996) 9 SCC 225]  and Jaswant Singh v. State of Haryana [(2000) 4 SCC 484] and  same parameters were reiterated in the latest judgment of this  Court in State of Goa v. Sanjay Thakran & Anr. ((2007) 3 SCC  755).           16.       Though the above principles are well-established, a  different note was struck in several decisions by this Court.  It  is, therefore, appropriate if we consider some more leading  decisions on the point. 17.       In Prandas v. State [AIR 1954 SC 36], the accused was  acquitted by the Trial court.  The Provincial Government  preferred an appeal which was allowed and the accused was  convicted for offences punishable under Sections 302 and 323  IPC.  The High Court, for convicting the accused, placed  reliance on certain eye-witnesses. 18.    Upholding the decision of the High Court and following  the proposition of law in Sheo Swarup v. R. Emperor  (1933- 34)61 IA 398 : AIR 1934 PC 227 (2), a six-Judge Bench  speaking through Fazl Ali, J. unanimously stated: (Prandas  case, AIR p. 38, para 6) "6. It must be observed at the very outset  that we cannot support the view which  has been expressed in several cases that  the High Court has no power under  Section 417, Criminal Procedure Code, to  reverse a judgment of acquittal, unless the  judgment is perverse or the subordinate  court has in some way or other  misdirected itself so as to produce a  miscarriage of justice."                                   (emphasis supplied)

19.       In Surajpal Singh v. State [AIR 1952 SC 52], a two- Judge Bench observed that it was well-established that in an  appeal under Section 417 of the Cr.P.C. (old), the High Court  had full power to review the evidence upon which the order of  acquittal was founded. But it was equally well-settled that the  presumption of innocence of the accused was further  reinforced by his acquittal by the trial court, and the findings  of the trial court which had the advantage of seeing the  witnesses and hearing their evidence could be reversed only  for very substantial and compelling reasons. 20.       In Aher Raja Khima v. State of Saurashtra [AIR 1956 SC  217], the accused was prosecuted under Sections 302 and 447  IPC. He was acquitted by the trial court but convicted by the  High Court. Dealing with the power of the High Court against  an order of acquittal, Bose, J. speaking for the majority (2:1)

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stated: (AIR p. 220, para 1) "It is, in our opinion, well settled that it is  not enough for the High Court to take a  different view of the evidence; there must  also be substantial and compelling  reasons for holding that the trial court was  wrong."                 (emphasis supplied)

 21.       In Chandrappa v. State of Karnataka (2007) 4 SCC 415],  on consideration of a catena of earlier decisions of this Court  and Privy Council, the following general principles regarding  powers of the Appellate Court while dealing with an appeal  against an order of acquittal emerge: (1) An appellate court has full power to  review, reappreciate and reconsider the  evidence upon which the order of  acquittal is founded. (2) The Code of Criminal Procedure, 1973  puts no limitation, restriction or  condition on exercise of such power and  an appellate court on the evidence before  it may reach its own conclusion, both on  questions of fact and of law. (3) Various expressions, such as,  "substantial and compelling reasons",  "good and sufficient grounds", "very  strong circumstances", "distorted  conclusions", "glaring mistakes", etc. are  not intended to curtail extensive powers  of an appellate court in an appeal against  acquittal. Such phraseologies are more in  the nature of "flourishes of language" to  emphasise the reluctance of an appellate  court to interfere with acquittal than to  curtail the power of the court to review  the evidence and to come to its own  conclusion. (4) An appellate court, however, must  bear in mind that in case of acquittal,  there is double presumption in favour of  the accused. Firstly, the presumption of  innocence is available to him under the  fundamental principle of criminal  jurisprudence that every person shall be  presumed to be innocent unless he is  proved guilty by a competent court of law.  Secondly, the accused having secured his  acquittal, the presumption of his  innocence is further reinforced,  reaffirmed and strengthened by the trial  court. (5) If two reasonable conclusions are  possible on the basis of the evidence on  record, the appellate court should not  disturb the finding of acquittal recorded  by the trial court.

22.      Again in a recent decision in Girja Prasad (Dead) by Lrs.  V. State of M. P. [(2007) 7 SCC 625], this Court held that in an  appeal against acquittal, it is for the Appellate Court to keep in  view the relevant principles of law, to re-appreciate and  reweigh the evidence as a whole and to come to its own  conclusion on such evidence in consonance with the principles  of criminal jurisprudence.  In the teeth of the well-established

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principles discussed in the above-stated decisions, the  question whether the High Court in exercise of its appellate  jurisdiction has exceeded its limitations in an appeal against  acquittal of the appellant by the Trial Judge, shall be dealt  with in the later part of the judgment after recording all the  submissions urged on behalf of the appellant before us.  23.       The learned senior counsel contended that the High  Court has failed to appreciate the vital aspect of the matter  that the trial court has recorded fact finding that the alleged  eye-witnesses in the present case were interested witnesses as  they are related to the deceased and their evidence was not  reliable unless the same was corroborated by independent  witnesses who were not examined by the prosecution though  available to it or who have turned hostile to the prosecution. 24.       The learned counsel then contended that the High  Court again committed grave error in relying on the evidence  of panch witnesses who have not supported the prosecution  case in respect of recovery of weapons of offence allegedly used  in the commission of the crime, surprisingly the High Court  convicted the appellant for offence under Section 302, while on  the same set of evidence it has given benefit of doubt to the  appellant holding him not guilty of offences under Section 307  of IPC and Arms Act for causing gunshot injury to PW-Sanjay.   According to the learned counsel, the evidence of the eye- witnesses did not inspire confidence in the prosecution story  and reliance upon the same for convicting the appellant under  Section 302, IPC, was wholly unsustainable.  He next  contended that the High Court also failed to appreciate that  statements of witnesses recorded after considerable delay  would point out towards a concerted attempt on the part of the  prosecution and the witnesses to falsely implicate the  appellant.  The High Court has failed to appreciate that the  report of the Chemical Analyser did not conclusively prove the  presence of human blood-stains found on the clothes of the  appellant bearing blood group of the deceased Sunita.  The  trial court on the basis of these material defects and loopholes  in the case of the prosecution has rightly drawn adverse  inference against the prosecution, but the High Court having  failed to appreciate the material aspect of the matter, recorded  different findings against the appellant which are wholly  perverse based on mis-appreciation of the evidence appearing  on record.  The learned counsel, by taking us through the  judgment of the High Court, then contended that PW-Sanjay  has not stated in his statement anything in regard to the stab  injury caused to him by the appellant which is noticed by the  Medical Officer in his report.  The prosecution has also not  examined the Medical Officer, who had taken out pellets or its  remains from the body of PW-Sanjay and, therefore, full truth  has not come before the Court and genesis of occurrence has  been suppressed by the prosecution.  He also raised a  contention that the High Court has failed to appreciate the  evidence of PW-Rajesh, who has supported the defence version  to a considerable extent pleaded by the appellant in the  statement under Section 313 Cr.P.C.  According to the learned  counsel, the time mentioned at 7.30 p.m. in First Information  Report was also repeated on the arrest memo of the appellant  as well as on the other material documents prepared by the  Investigating Officer, would cast reasonable doubt that the  investigation was not conducted fairly and honestly.   He then  submitted that the learned Trial court was right in holding the  prosecution case doubtful as it has failed to explain the injury  on the little finger of the hand of the appellant, but the High  Court has held the appellant responsible for non-explanation  of blood injury on his finger, which finding is contrary to the  well-settled principle of law.  The learned counsel then

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contended that the evidence of the alleged eye-witnesses is full  of contradictions, unexplained discrepancies and also the fact  that the statements of PW-Sanjay and Nirmalabai, were not  recorded immediately after they were taken to Paoni Hospital  and statements of PW-Archana and PW-Rupesh were recorded  after about 3 or 4 days from the day of incident, in spite of  their availability for giving the statements to the Police.    According to the learned counsel, the statements of injured  PW-Sanjay and Nirmalabai (who died during trial) ought to  have been recorded as dying declaration to unfold the true  genesis of the occurrence and to prove beyond reasonable  doubt that it was the appellant and none else who caused the  death of Sunita and injuries to PW-Sanjay and deceased  Nirmalabai.   It is also contended by the learned counsel that  the prosecution story was inherently improbable as the  appellant could not have held a gun in one hand and a knife  in another for inflicting injuries to the injured persons and  deceased Sunita by using two different weapons at the same  time.  Lastly, the learned counsel submitted that the judgment  of the learned Trial Judge was valid and legal based upon  proper appreciation of the evidence and reasonable  considerations of the entire material on record which has been  set aside by the High Court on unsustainable, untenable  grounds and misreading and mis-appreciation of the entire  evidence appearing on record.                 25.      In opposition, Dr. Rajiv Masodkar, learned counsel for  the respondent-State, submitted that the evidence of injured  PW-Sanjay has been corroborated by PW-Archana, PW- Rupesh, who are the other eye-witnesses of the occurrence,  and also to some extent by PW-Prakash Deshkar, the  complainant.  He submitted that no doubt PW-2 Laxmibai,  PW-3 Bilkish Begum, PW-5 Rajesh and PW-15 Nilkanth have  resiled from their earlier statements made to the Police and  the Special Judicial Magistrate, but their versions in the Court  on material aspect of the matter find support to the  prosecution case and, therefore, their evidence to that extent  has to be accepted in the circumstances of the case.  The  learned counsel also relied upon the evidence of PW-Vithoba  Khobragade and PW-Harihar Barsagade, who had noticed  stains of blood on the wearing apparel of the appellant at the  time of his arrest and disclosure statement made by him in  their presence, on the basis of which gun and knife used for  the commission of offence were recovered coupled with the fact  that blood-stained nails clippings are sufficient and consistent  circumstances connecting the appellant in the commission of  the crime.  The learned counsel then contended that the High  Court has made proper and perspective re-appraisal of the  entire evidence on record and found the appellant guilty of the  offence of murder of Sunita and if the Investigating Officer was  not prompt in recording the statements of the eye-witnesses,  his slackness in no circumstances will prove the innocence of  the appellant whose presence at the scene of occurrence  armed with weapons of offence has been fully established by  the injured eye-witness and other material witnesses.  He  submitted that this Court shall not be obliged to interfere with  the well-merited and well-reasoned judgment of the High  Court which, in no circumstances, can be said as perverse or  illegal. 26.       In the backdrop of the above-said contentions of the  learned counsel for the parties and in the light of principles  laid down in the above referred decisions of this Court and the  Privy Council on the question of exercising powers in appeal  by the High Court against the order of acquittal and the well- settled principles laid down in a series of decisions of this  Court on the point of appreciation of the evidence of the

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injured eye-witnesses and non-injured eye-witnesses, we shall  consider the evidence placed on record to find out whether the  High Court has committed any error in dealing with the  evidence, which can be said to be patently illegal or that the  conclusion arrived at is wholly untenable, calling for  interference by us. 27.       The substance of occurrence of incident as alleged by  the prosecution is not disputed and the only question would  be whether the appellant is proved to be responsible for  causing the injury to deceased Sunita, which later on proved  fatal to her. 28.      It is the categorical evidence of PW-Sanjay that on  28.03.1988 he along with his wife Sunita, mother-in-law  Nirmalabai, PW-Archana and PW-Rupesh had gone towards  the bridge of Wainganga River for evening walk.  At about 6.00  p.m. when they started returning to the house of his mother- in-law they noticed the appellant and his one friend going on a  motorcycle towards bridge side.  As soon as they reached near  the house of his mother-in-law, he heard sound of gun fire  from his back side which hit him in the back and at that time  he saw the appellant approaching behind him armed with a  gun.  The appellant then kept gun at one side of the scene of  the incident and he himself rushed towards them armed with  knife.  He attacked his wife Sunita with knife and stabbed  parts of her head, neck and back, etc. and in the process, the  appellant also assaulted his mother-in-law with the knife and  on seeing the people gathering at the spot, the appellant fled  away from the scene of occurrence.  It is his evidence that one  day before the day of "Sakshagandha" ceremony, which took  place on 13.12.1987, the appellant had come to his house at  Nagpur and apprised him about his love-affair with Sunita and  disclosed that on an earlier occasion as well he had broken the  proposal of marriage of Sunita with one boy. The appellant  warned him that if he still would like to marry Sunita he  would face dire consequences at the hands of the appellant.   The series of suggestions of the defence that on the day of  incident the witness had not seen the appellant at the spot;  the appellant had not carried the gun with him; the appellant  had not rushed towards him, his wife Sunita and other  persons accompanying them armed with knife and that the  appellant had not stabbed deceased Sunita and Nirmalabai  with knife, have categorically been denied by him.  This  witness is not a stranger to the appellant and he has clearly  identified the appellant as an assailant.  His evidence has not  been shattered or discredited by the defence in spite of  searching cross-examination.  He is natural witness being an  injured person and his evidence is cogent, satisfactory and  consistent which has been properly re-appreciated and  accepted by the High Court holding the appellant an assailant  of the murder of Sunita.  29.       PW-Archana has fully corroborated the testimony of  PW-Sanjay.  It is her evidence that on the day of occurrence,  Sunita had requested her and PW-Rupesh to give company to  her, her husband Sanjay and mother Nirmalabai, who had  decided to go to Wainganga river bridge side for evening walk.   They left the house of Nirmalabai around 5.00 p.m.  At about  6.00 p.m. or 6.30 p.m. they started returning to the house of  Nirmalabai from the place of their visit, when they saw the  appellant and Raju Deshkar (PW-5) going towards the bridge  side riding on a motorcycle.  It is her evidence that after  crossing the gate of Fort and turning towards western side of  the place of incident, they heard a sound of gunshot, which hit  PW-Sanjay on his back and Sanjay shouted "Are Bapre" and  as a result of gun fire injury, Sanjay laid down on the road.   Sunita and Nirmalabai immediately rushed towards Sanjay

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and embraced him.  This witness has identified the appellant  who was following them at a distance of about 5 or 6 feet  holding a gun and one knife in his hands.  She deposed that  in her presence the appellant at first attempt pulled Sunita’s  hair and then inflicted knife blows on her head, neck and back  without any cause.  She and PW-Rupesh got frightened due to  the sudden horrible incident, they rushed to the house of PW- Sadashiorao - grandfather of Sunita to narrate the incident  but Sadashiorao, at the relevant time, was not present in the  house.  The grandmother of Sunita told them that her  husband, at the relevant time, could be found in the nearby  house of Ganpati Nimje.  She along with PW-Rupesh went to  the house of Ganpati Nimje and they accordingly narrated the  entire incident to PW-Sadashiorao, who in turn immediately  rushed to the scene of occurrence.  She stated that in the  evening at about 7.30 p.m., she came to know that Sunita had  died.  The learned counsel for the appellant has challenged the  testimony of this witness on the ground that she and PW- Rupesh, being close relatives of Sunita, had not cared to take  the injured to the Hospital nor they made any attempt to go to  the Police Station for reporting the matter and, therefore, in  such circumstances the presence of these two witnesses on  the place of occurrence was doubtful and they being the  interested witnesses were later on introduced by the Police  projecting them as eye-witnesses.  He next contended that the  statement of this witness under Section 161 Cr. P.C. was  recorded by the Police after 3 or 4 days of the incident which  fact itself would cast serious doubt about the presence of this  witness on the scene of occurrence.  We have independently  scrutinized the evidence of this witness and found that in spite  of lengthy cross-examination by the defence, her testimony  could not be impeached in regard to the manner in which the  appellant had assaulted deceased Sunita with knife.  She had  withstood the cross-examination very boldly and, in our view,  she is a truthful witness and has given positive, satisfactory  and consistent account of the incident.  The evidence of this  witness is free from any doubt and cannot be disbelieved or  discarded simply because she is a relative of deceased Sunita.      30.       PW-Rupesh has corroborated the testimony of PWs- Sanjay and Archana in its entirety.  He has identified the  appellant, who had pulled hair of Sunita at the scene of  occurrence and then stabbed her on her head, neck and back  without any reason.  He corroborated the testimony of PW- Archana to the extent they got frightened at the scene of  occurrence due to sudden horrible incident.  He has  categorically repeated the entire sequence of events which has  been deposed by PW-Archana in her deposition.   It is his  evidence that in the evening around 7.00 or 7.30 p.m. he came  to know that Sunita had died due to the injuries she suffered  at the hands of the appellant.  The evidence of this witness  was consistent and free from embellishment.  Nothing has  been elicited in the cross-examination to discredit his  testimony.  A suggestion of the defence that in the evening of  the incident he did not accompany PW-Archana, PW-Sanjay,  deceased Sunita and deceased Nirmalabai for a walk as  deposed by him in the Court, has been denied by him  categorically.   31.      PW-6 corroborated the testimony of PWs-Archana and  Rupesh to the extent that both these witnesses had come to  his house and narrated the entire sequence of the incident to  him.  He rushed to the spot of occurrence where he came to  know that injured Sunita, Sanjay and Nirmalabai were already  taken to the Hospital.  He immediately went to the Hospital at  Paoni, where he found Nirmalabai, Sanjay and Sunita lying in  an injured condition.  Sunita at that time was unconscious;

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therefore, he could not speak to her.  PW-Sanjay at that time  was vomiting.  A suggestion of the defence that when he went  to the Hospital he found Nirmalabai in an unconscious  condition was denied by him.  One more suggestion of the  defence that the witness has falsely implicated the appellant  because deceased Sunita was his grand-daughter and also  due to the reason that the father of the appellant was not on  speaking terms with him, was emphatically denied by him.   Therefore, this witness has corroborated the testimony of PWs- 4 and 16 who had narrated the entire incident to him naming  the appellant the author of the serious offence of murder of  Sunita. 32.       PW-Prakash, who lodged report [Ext. 28] of the incident,  stated that on hearing Sunita’s shouts "Wachawa Wachawa",  he rushed to the spot of incident and noticed Sunita lying with  bleeding injuries on the road side in front of the house of one  Ganeshe Tahsildar and he also spotted Nirmalabai and one  man lying on the ground in an injured condition.  The injured  man had uttered "Golya Kadha Golya Kadha".  This witness,  no doubt, has turned hostile to the prosecution and in the  cross-examination by the learned A.P.P. he denied having  made portion marked ’A’ of his statement to the Police to the  extent that Mahesh was standing near the place where Sunita,  her husband and Nirmalabai were lying with bleeding injuries,  holding gun between his knees and one knife in his hand and  at that time the appellant was shouting "arrest him arrest  him".  PW-1, the complainant, is a Medical Practitioner and  belongs to village Paoni.  He knew the deceased Sunita, her  mother Nirmalabai and the appellant-Mahesh.  His dispensary  is at a distance of about 50 feet from the place of occurrence.    His evidence is that Sunita, Nirmalabai and the man were  having bleeding injuries on their person.  He lifted them into a  rickshaw and took them to the Government Hospital at Paoni,  where he assisted the Medical Officer in giving medical  treatment to the injured persons.  At about 7.30 or 8.00 p.m.  as per his version, Sunita died in the hospital whereas  Nirmalabai and the said injured man were sent for better  medical treatment to Medical College Hospital at Nagpur.  He  stated that he reported the entire incident to the Police in the  Police Station and made a report (Ext. 28) which was signed  by him.  The testimony of this witness also corroborates the  testimony of injured PW-Sanjay and other non-injured eye- witnesses to the extent that deceased Sunita, PW-Sanjay and  Nirmalabai were lying with bleeding injuries at the scene of  occurrence on the day of incident.   33.       It is the evidence of PW-PSI Dhimole that portion mark  ’A’ appearing in the statement of PW-1 was recorded by him  correctly.  The defence has not brought on record any evidence  to show why the Investigating Officer had recorded mark ’A’  portion of the statement of PW-1 incorrectly.  If PW-1 the  maker of the complaint has chosen not to corroborate his  earlier statement made in the complaint and recorded during  investigation, the conduct of such a witness for no plausible  and tenable reasons pointed out on record, will give rise to  doubt the testimony of the Investigating Officer who had  sincerely and honestly conducted the entire investigation of  the case.  In these circumstances, we are of the view that PW- 1 has tried to conceal the material truth from the Court with a  sole purpose of shielding and protecting the appellant for  reasons best known to the witness and therefore, no benefit  could be given to the appellant for unfavourable conduct of  this witness to the prosecution.        34.       Laxmibai (PW-2) and Bilkish Begum (PW-3) have also  followed the same trend which PW-1 had adopted.  They were  confronted by the learned A.P.P. with portion mark ’A’  of their

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earlier statements made to the Police implicating the appellant  as an assailant, but later on they have resiled from their  earlier statements perhaps for some undisclosed reasons and  considerations, which are confined to themselves.  The  evidence of PSI Dhimole (PW-18) has proved on record that he  had recorded mark portion ’A’ of the statements made by PWs- 2 and 3 during investigation, correctly and nothing more was  added by him in their statements.   35.       Nilkant (PW-15) is the resident of village Paoni and he is  acquainted with the appellant.  It is his evidence that at about  6.00 or 6.30 p.m. on the day of incident, he was sitting on a  bench in front of tea stall of one Gopal Somnathe, when he  saw Nirmalabai, her daughter and son-in-law coming from the  bridge side of the river and going to the house of Nirmalabai.   He heard some sound emanating from western side of the  road.  When he was going to his house, he came to know near  the house of one Parate that Nirmalabai’s son-in-law was given  beatings.  He returned to the shop of Gopal Somnathe where  he was told that the son-in-law of Nirmalabai had been taken  to the hospital in an injured condition.  He was allowed to be  cross-examined by the learned A.P.P. when he admitted that  during investigation of this case the Police had recorded his  statement and later on Special Judicial Magistrate had also  recorded his statement under Section 164 Cr.P.C. along with  four or five more witnesses.  He has denied having made  statement to the Special Judicial Magistrate to the extent that  on the day of incident he saw the appellant armed with a gun  and giving knife blows on the person of Sunita and her mother  Nirmalabai.   36.      Shri Prabhakar (PW-17) Special Judicial Magistrate on  05.04.1988 recorded the statements of PW-Nilkanth, PW- Laxmibai, PW-Archana and PW-Rupesh under Section 164  Cr.P.C.  On 06.04.1988, the Special Judicial Magistrate  recorded the statements of PW-Prakash - the complainant.   Copies of the statements were placed on record (Ext.79,  Ext.80, Ext.81, Ext. 82 and Ex.83) respectively.   The Special  Judicial Magistrate denied the suggestion of the defence that  he had prepared the statements of the said witnesses on the  basis of the statements recorded by the Police.  PW-Prakash,  PW-Laxmi and PW-Nilkanth could not explain any reason why  the Special Judicial Magistrate was interested to record the  portions of their statements incorrectly in which they had  named the appellant as an author of the crime.  The testimony  of the Investigating Officer also would not ipso facto give rise to  doubt its credibility when the same was not shaken in cross- examination and he has no animus against the appellant to  frame him in a false case.   Merely because PWs-1, 2, 3 and 15  did not support the prosecution case when they were  examined in the Court, that would not, in the circumstances,  lead to the conclusion that the appellant was innocent.  The  Investigating Officer and the Special Judicial Magistrate both  have categorically stated that they had correctly recorded the  statements of PWs-1, 2, 3 and 15 under Section 161, Cr.P.C.  and Section 164, Cr.P.C. respectively.   The testimony of the  Investigating Officer and Special Judicial Magistrate in no  circumstances and for no good reason could be disbelieved  and discredited and we, accordingly, accept their evidence in  its entirety without any hesitation. 37.       The learned Trial Judge has disbelieved the evidence of  PW-Sanjay, PW-Archana, PW-Rupesh and PW-Sadashio  merely on the grounds that they are close relatives of deceased  Sunita and therefore interested witnesses and that no other  independent witnesses who were present at the scene of  occurrence, had been examined by the prosecution and  therefore there was no independent corroboration to the eye-

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witnesses account of the interested witnesses. 38.       This Court in Salim Sahab v. State of M. P. [(2007) 1  SCC 699] held that mere relationship is not a factor to affect  the credibility of a witness.  It is more often than not that a  relation would not conceal actual culprit and make allegations  against an innocent person.  Foundation has to be laid if plea  of false implication is made.  In such cases, the court has to  adopt a careful approach and analyse evidence to find out  whether it is cogent and credible.  In Masalti v. State of U. P.  [AIR 1965 SC 202] this Court observed:  (AIR pp. 209-210,  para 14)

"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. \005  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."

To the same effect are the decisions in State of Punjab v. Jagir  Singh [(1974) 3 SCC 277], Lehna v. State of Haryana [(2002) 3  SCC 76] and Gangadhar Behera v. State of Orissa [(2002) 8  SCC 381].   39.       As regards non-examination of the independent  witnesses who probably witnessed the occurrence on the road  side, suffice it to say that testimony of the PW-Sanjay, an eye- witness, who received injuries in the occurrence, if found to be  trustworthy of belief, cannot be discarded merely for non- examination of the independent witnesses.  The High Court  has held in its judgment and, in our view, rightly that the  reasons given by the learned Trial Judge for discarding and  disbelieving the testimony of PWs-4, 5, 6 and 8 were wholly  unreasonable, untenable and perverse.  The occurrence of the  incident, as noticed earlier, is not in serious dispute.  PW- Prakash Deshkar has also admitted that he had lodged  complaint to the Police about the incident on the basis of  which FIR came to be registered and this witness has  supported in his deposition the contents of the complaint to  some extent.  It is well-settled that in such cases many a  times, independent witnesses do not come forward to depose  in favour of the prosecution.  There are many reasons that  persons some times are not inclined to become witnesses in  the case for variety of reasons.  It is well settled that merely  because the witnesses examined by the prosecution are  relatives of the victim, that fact by itself will not be sufficient to  discard and discredit the evidence of the relative witnesses, if  otherwise they are found to be truthful witnesses and rule of  caution is that the evidence of the relative witnesses has to be  reliable evidence which has to be accepted after deep and  thorough scrutiny. 40.       PWs-4, 5, 6 and 8 have consistently supported the  prosecution case in their statements made before the Police as  well as in deposition before the trial court.  We have referred to  and discussed their material evidence in the earlier paragraph  of this judgment and we do not find any cogent and valid  reason to discard and discredit their testimony, more so when  their evidence is corroborated by medical evidence and other  important piece of evidence appearing on record.  Dr. Laxman

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Fegadkar (PW-10) on 28.03.1988 had admitted injured Sunita,  Nirmalabai and PW-Sanjay in the Government Hospital, Paoni.   He immediately passed on the information to the Police Station  about the admission of the injured persons in the Hospital.   He received a letter from the Police Officer, Paoni, requesting  him to certify whether Sunita was in a fit condition to give  statement and in reply thereto, doctor certified that Sunita  was not fit for giving oral statement as she was lying  unconscious.  He could not take sample of blood of Sunita as  her veins had collapsed.  On examination of Sunita, he found  as many as 9 injuries on her body.  In the opinion of the  doctor, all the injuries were caused by a sharp- edged weapon  within a duration of six hours.  According to the opinion of the  doctor, the general condition of Sunita was poor when she was  brought to the hospital and Sunita expired around 7.15 p.m.  on 28.03.1988.  Doctor placed on record Injury Certificate  (Ext. 54) of Sunita.  Dr. Laxman also conducted medical  examination of injured Sanjay and on examination his  condition was also found very poor and as many as three  severe injuries were found on his person.  Injury No.1 could be  caused by sharp object and Injury Nos. 2 and 3 were as a  result of fire arm as per doctor’s opinion.  The duration of all  the said injuries was reported to be within six hours.  The case  of PW-Sanjay was referred to Medical College, Nagpur, for  further management.  The injury statement of PW-Sanjay was  placed on record mark (Ext. 55).  On the same day, Dr.  Laxman examined Nirmalabai and found as many as four  injuries on her person caused by sharp object and the  duration of the injuries was within six hours.  Injured  Nirmalabai was also referred to Nagpur for further  management and her Injury Certificate was placed on record  marked Exhibit 56.   41.       Dr. Laxman medically examined the appellant at  about 10.30 p.m. on 29.03.1988 when he was brought to the  hospital by Police Constable.  A lacerated wound 1 cm x 1cm  over right little finger, muscle deep over middle phalanx was  noticed on his hand by the doctor.  The injury was found  simple in nature and could have been caused by hard and  blunt object within a duration of about 24 hours.  The Injury  Certificate of the appellant was placed on record marked  Exhibit 57.  Doctor collected five C.C. Venous blood from the  body of the appellant.  On 30.03.1988, the Police Station  Officer of Paoni sent one knife to the doctor for his opinion.  Dr. Laxman found blade of the knife blood-stained.  Doctor  has opined that the injuries found on the body of Sunita and  on the person of PW-Sanjay, as mentioned in their Medical  Certificates, could be caused by knife which he identified  (Art. No. 20) before the Court.  In post mortem report of the  deceased Sunita, doctor reported the injuries to be ante  mortem.  He found two internal injuries on the body of  deceased Sunita: (1) Pleura-perforating injury 1 cm x 1 cm  upto apex of left lung and (2) Left lung: 2 cm x = cm injury to  the apex of left lung plenty blood collection was seen in left  thoracic cavity.  Doctor opined the cause of death of Sunita  due to shock and haemorrhage as a result of severe injury to  vital part, i.e., left lung.  Injury No.2 as described in post  mortem report was reported to be sufficient in ordinary  course of nature to cause the death of Sunita and was  possible with knife [Article No. 20].  In cross-examination, Dr.  Laxman categorically stated that when Sanjay and  Nirmalabai were brought to the hospital, their conditions  were serious; therefore they were referred to the Medical  Hospital, Nagpur, for further medical treatment.  A  suggestion of the defence that the injuries mentioned by him  in the Injury Statement (Ext. 54) and post mortem report (Ext.

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62) of deceased Sunita could not have been possibly  caused  by knife (Art. No. 20) has been categorically denied by him. 42.       Thus, the testimony of the eye-witnesses including  the injured eye-witness PW-Sanjay finds complete  corroboration from the medical evidence in regard to the  severe injuries sustained by deceased Sunita at the hands of  the appellant with knife (Art. 20), the weapon of offence used  in the commission of the crime.  PW-Sanjay and his brother  PW-Manik deposed that the appellant had extended threats  to PW-Sanjay to get ready for facing dire consequences if he  would marry with Sunita since the appellant was in love with  her since their school days.   The evidence of these witnesses  on this aspect has remained intact and untouched from the  defence side.   43.      The contention of the learned counsel for the  appellant that the conduct of PWs-Archana and Rupesh, the  alleged eye-witnesses, not accompanying the injured persons  to the hospital and not reporting the incident to the Police  should be viewed with suspicion and, therefore,  their  evidence has to be rejected from consideration.    In support  of this submission, reliance has been placed on Surinder  Singh v. State of Punjab [(1989) Supp. (2) SCC 21].  In that  case, after seeing the occurrence the eye-witness had not  gone to inform the parents and relatives of the deceased but  had gone to his own house and slept for some time and then  went and informed the matter to PW-3 and some other  persons.  In such circumstances of the case, this Court  found the conduct of the said witness suspicious and his  explanation that due to threats of the accused he did not  inform anyone forthwith was not found acceptable.  The facts  and circumstances of that case are entirely different to the  factual situation of the present case.  In the present case, we  find from the record that at the time of the occurrence of the  crime PW-Archana was about 19 years of age whereas PW- Rupesh was hardly 14 years of age.  Both these witnesses as  earlier stated on seeing the appellant giving repeated knife  blows on some parts of neck, head and back of Sunita and  inflicting severe injuries to PW-Sanjay and Nirmalabai, they  immediately rushed to the house of PW-Sadashio and  promptly reported the entire incident to him.  The conduct of  these two children, in these circumstances, cannot be found  suspicious or unnatural as contended by the learned  counsel.  These witnesses have withstood the cross- examination with courage and boldness and their testimony  could not be impeached by the defence in regard to the  genesis of the incident.   The eye-witnesses have no animus  against the appellant to implicate him in a false case and  leaving the real assailant from the clutches of law. In the  circumstances, no fault can be found in regard to the  conduct of these witnesses.  This contention raised deserves  to be rejected 44.     Learned counsel for the appellant next contended  that because of the fault of the Investigating Officer not  recording the statements of injured Nirmalabai, Sunita and  PW-Sanjay in the form of dying declarations; the true genesis  of the incident and name of the author of the crime have  been concealed by the  prosecution. In order to appreciate  this contention, we have already pointed out in the earlier  part of the judgment that as per the opinion of Dr. Laxman,  injured Sunita was in serious condition when she was  brought to the hospital and she could not regain the  consciousness till she succumbed to her injuries.  As regards  non-recording of the statements of injured Sanjay and  Nirmalabai, it is the explanation of the Investigating Officer  that he tried to get their statements recorded, but

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considering the seriousness of injuries on their person,  doctor had referred them to the Medical College, Nagpur, and  before they could be taken to Nagpur, he made an attempt to  request the Tehsildar or any other Magistrate to visit hospital  for recording statements of the injured persons, but no  officers were found available at the relevant time for the said  purpose.  In these circumstances, no fault could lie on the  conduct of the Investigating Officer and this contention  therefore is rejected. It is also submitted by the learned  counsel for the appellant that there are some discrepancies,  contradictions and omissions in the evidence of PW-Archana,  PW-Rupesh and PW-Sanjay in regard to giving different time  of the incident, reporting of the matter to the Police and  preparation of memos by the Investigating Officer during  investigation would create suspicion that they are not  trustworthy and natural witnesses and they have tried to  implicate the appellant as an assailant in a false case.  PW- Sanjay and PW-Manik both clearly and unambiguously  deposed in regard to the motive of the appellant.  The  appellant, as noticed above, in his statement under Section  313, Cr. P.C., has admitted that he along with PW-Rajesh  around 5.00 or 5.30 p.m. on the date of incident had gone on  a motorcycle towards the river side for evening walk.  The  versions of PWs-Sanjay and Manik that before marriage of  Sanjay with Sunita, the appellant had gone to the house of  Sanjay at Nagpur and disclosed the factum of his love-affair  with Sunita have not been rebutted by the appellant in his  statement.  PW-Rajesh and appellant himself have admitted  that at about 5.30 p.m. or 6.00 p.m. on the day of  occurrence, both of them had gone on motorcycle to river  side for evening walk.  In cross-examination by Public  Prosecutor, PW-Rajesh along with the appellant had returned  to their respective houses at about 7.30 p.m. and thereafter  at about 7.45 p.m. or 7.50 p.m. he again went to hill side  along with Ulhas, the elder brother of the appellant.   The  High Court has observed that this piece of evidence of this  witness was not possible to believe that when such incident  had occurred in a village and his friend appellant was  arrested by the Police at about 7.30 p.m. for the murder of  Sunita and causing severe injuries to PW-Sanjay and  Nirmalabai, this witness along with elder brother of the  appellant would have gone for second round of walk and in  such sequence of events, PW-Rajesh was obviously hiding the  truth from the Court.  His evidence does not lend any  support to the defence plea of the appellant that he has been  falsely framed in this case by the Police or by eye-witnesses  for some ulterior reasons. 45.     The appellant was arrested by the Investigating  Officer in the presence of PW-Vithoba Khobragade and PW- Harihar.  The learned counsel submitted that there is  discrepancy in giving 7.30 p.m. the time of the arrest of the  appellant, which was factually incorrect as the same time  was mentioned in the FIR and no reliance, therefore, could be  placed on such documents and according to the counsel no  reliance could be placed on the evidence of PW-Harihar being  habitual panch witness of the Police.  It is no doubt true that  PW-Harihar in cross-examination admitted that during the  period from 1978 to 1981 he had given evidence as Panch in  5 or 6 cases in the Court on behalf of the Police as his  residence is located in front of the Police Colony.  It is  difficult to believe that simply because this witness in the  past had appeared as Panch in the Court during the period  1978 to 1981 and for that sole reason he has to be branded  as habitual Panch witness and in this case for the incident of  1988 he had blindly signed Panchnama (Ext. 41).  PW-

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Vithoba Khobragade is a Legal Practitioner and he has fully  supported the preparation of the arrest panchnama of the  appellant.  The appellant has not pointed out any reason as  to why PW-Vithoba Khobragade has deposed against him.   The arrest Panchnama (Ext. 41) would reveal that the  appellant at the time of arrest was wearing a sky colour white  check manila and brown catechu coloured full-pant and  stains of blood were noticed at his shirt when he was  arrested.  It also finds mentioned in the Panchnama that the  appellant had a cut injury on his right little finger and blood  was oozing out of the said injury.   The Panchnama was  prepared by the Investing Officer immediately after the  incident.  The appellant has not explained the existence of  cut injury on his right little finger.  Dr. Laxman recorded the  cut injury on the little finger of the appellant in the Medical  Report (Ext. 57).  The injury was simple in nature and was  caused by blunt object.  Besides the arrest panchnama (Ext.  41), the Investigating Officer prepared panchnama (Ext. 45)  by which samples of nail clippings of the appellant were also  taken in the presence of PW-Vithoba Khobragade.  Chemical  Analyser’s Report (Ext. 100) shows that the shirt, pant and  nail clippings of the appellant contained stains of human  blood.  The learned counsel contended that the prosecution  has not taken the sample of blood group of the deceased  Sunita for comparison with group of blood found on wearing  apparel of the appellant and in such circumstances it could  not be established that the group of blood found on the  clothes of the appellant as well as on his nail clippings was  the blood group of the deceased Sunita.  He also contended  that the prosecution has not explained the injury found on  the little finger of the right hand of the appellant and,  therefore, the appellant on this ground was also entitled to  the benefit of doubt which has rightly been given to him by  the trial court.  We are afraid to accept this contention of the  learned counsel.  Dr. Laxman in his deposition before the  Court clearly stated that on receipt of a letter from Police  Station Officer requesting for taking sample of blood of  deceased Sunita, he tried to collect her blood but he was  unable to collect the same as all veins of Sunita had  collapsed.  He handed over Certificate (Ext. 52) to the Police  to that effect.  The appellant has not explained that the  clothes which he was wearing at the time of arrest contained  stains of his own blood oozing out of the injury sustained by  him on little finger of his right hand.  It is no doubt true that  human blood found on the clothes and nail clippings of the  appellant was not conclusive proof that it belonged to the  blood group of the deceased.  The decision of this Court in  Raghu Nath v. State of Harnaya & Anr. [(2003) 1 SCC 398],  relied upon by the appellant on this point, is of no assistance  to him in the facts and circumstances of the present case.  In  that case, this Court held that where prosecution evidence  consisted of interested or inimical witnesses and defence  version would compete in probability with that of the  prosecution, non-explanation of the injuries of grievous  nature sustained by the accused rendered the prosecution  story doubtful.  That was a case of mob-fight in which  injuries were received by both the parties in the melee.           46.       This Court in Krishan & Ors. v. State of Haryana  [(2006) 12 SCC 459] held that merely because prosecution  has failed to explain injuries on the accused, the same  cannot be a solitary ground for doubting the prosecution  case, if otherwise, evidence relied upon is found to be  credible.  In the case on hand, as we are of the view that no  ground is made out to disbelieve and discard the evidence of  PWs-4, 8 and 16, who are injured and non-injured eye-

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witnesses and whose evidence is corroborated by other oral  and documentary evidence including the medical evidence,  therefore non-explanation of simple injury on little finger of  the right hand of the appellant by the prosecution is  insignificant in the teeth of the overwhelming, cogent,  consistent and trustworthy evidence appearing on record  against the appellant for holding him guilty of the  commission of the offence. 47.       The recovery of the gun and knife was effected by  the Investigating Officer at the instance of the appellant from  his house in the presence of panch witnesses PW-Vithoba  Khobragade and PW-Harihar.  It is no doubt true that PW- Vithoba Khobragade deposed that the appellant did not  disclose anything before the Police, but he also deposed that  the Police had recovered a gun and one knife from the house  of the appellant at his instance at about 9.40 to 10.30 on  28.03.1988.  The High Court, in our view, rightly observed  that it was not possible to hold that the prosecution  witnesses or the Police had planted these articles in the  house of the appellant, so as to make a show of discovery of  the weapons of offence from him.  The blade of the knife  recovered from the appellant contained blood stains as per  the version of Dr. Laxman when this weapon was shown to  him by the Police.  As per the Chemical Analyser’s Report,  stains of human blood were found on the knife, which was  produced in the Court and identified by Dr. Laxman who  categorically stated that injuries found on the dead body of  Sunita could be caused by the said weapon (Article No.20).   48.       The High Court, on reappraisal and reassessment of  the entire evidence on record, came to the conclusion that  immediately after the occurrence a report came to be lodged  to the Police Station against the appellant who has been  identified by the PW-Sanjay, an injured eye-witness and non- injured eye-witnesses and further that the appellant had  strong motive to commit the murder of Sunita with malice  towards PW-Sanjay-her husband, as well as her deceased  mother Nirmalabai, therefore, simply because there are some  minor discrepancies in the evidence of witnesses which are of  no consequence to the true genesis of the case and that some  evidence has not been adduced by the prosecution, though  might have been available, would not be sufficient grounds to  believe that the appellant has been booked in a false case.   There is nothing on record brought by the appellant to show  that it was quite possible that the witnesses would spare the  real culprit and implicate him in a false case.  On the basis of  the entire evidence elaborately discussed by the High Court,  it cannot be held that the appellant, in the present case, has  been framed on suspicion. 49.       Having given our careful consideration to the  submissions made by the learned counsel for the parties and  in the light of the evidence discussed in the earlier part of the  judgment and tested in the light of the principles of law  highlighted above, it must be held that the interference made  in the present case by the High Court with the order of  acquittal passed by the learned Additional District Judge, was  wholly justified and warranted. The evaluation of the findings  recorded by the High Court do not suffer from any manifest  error and improper and mis-appreciation of evidence on  record.  Hence, we agree with the opinion of the High Court  that the appellant is the real culprit and he has been rightly  held guilty of the offence punishable under Section 302 of IPC.   All the contentions raised by the learned counsel for the  appellant, in our view, do not merit acceptance. 50.       In the result, there is no merit in this appeal and it is,  accordingly, dismissed.