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        IN THE SUPREME COURT OF INDIA                   CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 1396 OF 2004

           SHAMRAO DATTU KUMBHAR                                            .. APPELLANT

                      vs.

           STATE OF MAHARASHTRA                                  .. RESPONDENT

                                           ORDER

          Shamrao Dattu Kumbhar, the appellant herein, being aggrieved by and

dissatisfied with the judgment of conviction and sentence dated 18.7.2001 passed by a

Division Bench of the High Court of Judicature at Bombay in Criminal Appeal No.557 of

1995 whereby and whereunder the appeal preferred by the State from the judgment and

order dated 27.3.1995 passed by IIIrd Additional Sessions Judge, Kolhapur, in Sessions

Case No.165 of 1994 acquitting him from the charges of Sec.302/201 of the Indian Penal

Code was allowed.

          A headless dead body was found on the Railway track at about 6 O’ clock in

the morning on 22.2.1994 by PW.7, Malappa Chavan. On the dead body there were some

marks of injuries on the chest. An information thereupon was given to the Station

Master of the Railway Station. The dead body was removed from the Railway track. A

telephonic message was received by PW.12-PSI Gandhi, who was on duty at the Railway

Police Station Miraj about the discovery of the said dead body. An inquest of the dead

body was made by him. An F.I.R. was also lodged under Sec.302/201 of the Indian Penal

Code at his instance at about 11.50 hours on 22.2.1994.

          The father of the deceased Bhausaheb Khot who examined himself by PW.1

identified the dead body.

          Some suspicion in regard to his involvement was raised as against the

appellant on the premise that he had illicit relationship with the wife of the deceased.

Although the High Court in its judgment noticed that the appellant was arrested on

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22.5.1995, it transpires that in fact the arrest took place on 25.2.1994. Allegedly at the

instance of the appellant bicycle, tiffin box, the head of the deceased as also his

undergarments were recovered. The head of the corpse was also identified by PW.1 as

also PW.16-Rajendra Khot - the brother of the deceased. Yet at about 19.3.1994 the

knife which was said to be the weapon of offence as also other blood stained clothes were

recovered.

            PW.4 - Bhausaheb Patil is said to be a panch witness.

            During the investigation, PW.6 Abha Shankar Khot contended that he was an

eye witness to the occurrence. We may notice that his statement in terms of Sec.164 of

the Code of Criminal Procedure was recorded on 24.2.1994. It

may not be necessary for us to refer to the said statements or his deposition before the

learned trial court as both the courts below did not rely thereupon on the premise that he

had been examined by the police after about eight days.

            The learned Sessions Judge recorded a judgment of acquittal opining that only

on the basis of the purported recoveries coupled with the alleged motive on the part of the

appellant to commit the said crime by themselves were not sufficient to hold that he was

guilty of commission of the murder of Ashok.

            The High Court, however, by reason of the impugned judgment laid great

emphasis not only on the purported motive on the part of the appellant to commit the

said offence but also on the recoveries purported to have been made at his instance.

            As indicated hereinbefore, the motive on the part of the appellant to commit

the murder of the deceased is said to be the illicit relationship of the deceased with his

wife.

            The said motive on the part of the appellant is said to have been proved inter

alia by PW.1 and PW.8-Ujwala, the wife of the accused. PW.1 is the father of the

accused. He, in his deposition, denied the existence of the motive. What he said in his

deposition was that it might be that the accused had suspicion about the illicit

relationship.

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            PW.1 therefore is not a witness to prove the existence of the motive.

            That takes us to the evidence to the wife of        the accused PW.8. In her

deposition, she stated that the deceased used to come to their house for hearing cassettes.

On a query by her husband why the deceased had been coming to their house PW.8

stated that if he had any suspicion in his mind he should warn him. He should ask him

not to come to their house. It was done. The deceased thereby stopped coming to their

house. It, however, appears that the deposition of the said witness as regards existence of

the motive has been misread by the High Court. The statements are as under:

                   "My brother in laws wife is Bharati Bhimrao Kumbhar. We          used to go together for doing work in the field and also for going to the          flour mills. At that time Abha Shankar Khot used to chase us. On          Friday one chit was found in our house, to my husband. My husband          then read over it. Thereafter he started beating me with a stick. It was          written in the said chit that come to the field of Shalu at about 12 noon.          It was written by Abha to Bharati. After reading the said chit he          started suspecting about me and started beating me, and therefore I          went to my grandfather’s place. It is at Akkule. Thereafter on Sunday          my husband came to my grandfather’s house. I

        then asked my grandmother to tell him that I have not come there.          Thereafter my husband went away. My mother then came there after          about 8 days. Thereafter myself and my mother came to Kabmur. I          then went to the Kabmur Police Station. There I was directed to go to          Hatkanangale Police Station. I told in the Police Station that I wanted          to lodge a complaint as my husband was beating me. Police asked me          to stay for some time. At that time I came to know that there was          murder of Ashok Khot."

            Abha Shankar Khot PW.6 as noticed heretobefore was not found to be a trust-

worthy witness. His conduct in the entire matter is suspicious. If he had written a chit

calling Bharti, who is brother’s wife of the appellant, there was no reason as to why the

purported suspicion which was in the mind of the appellant as regards the illicit

relationship of the deceased with his wife could be the cause for which the murder took

place.

            If the affairs of PW-6 and Bharti had nothing to do with the deceased or the

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wife of the appellant, evidently motive has not been proved.

           We may now notice the other evidences brought on record by the prosecution.

           As indicated hereinabove the principal evidence to rope in the appellant were

recoveries made at his instance.

We have noticed the role played by PW.4. PW.4 in his deposition admitted that for the

purpose of becoming a witness to the purported recoveries he and Sukumar were called

to the Police Station. On his own showing he was a regular visitor to the Police Station.

He made an attempt to explain the same stating that he had been a regular visitor as he

was required to visit it frequently as the police had started a prosecution regarding his

vehicle.

            We fail to understand as to why in a case involving carrying unauthorized

passengers in his vehicle which is an offence under the provisions of Motor Vehicle Act,

1988, the Police authorities will ask him to visit the Police Station frequently.

           According to the said witness himself that upon his visit to the Police Station

for the second time, the police had asked him to sit on the vehicle on the premise that

another panchnama was to be drawn. He was thus evidently a witness of one more

panchnama. Even before the discovery of the said articles, if he is to be believed, the PSI

had informed him about the place where they were required to visit for the said purpose

and the manner in which the recoveries were to be made. The stay of recovery thereof is

itself suspected.

           In our opinion the High Court was not correct in overturning a judgment of

acquittal in a situation like the present one. Investigating officer in a case of this natur e

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had a limited role to play.

          The High Court itself has proceeded on the footing that no reliance can be

placed on the evidence of PW.6.

          His evidence apparently did not corroborate the postmortem report which

discloses sufferance of several antemortem injuries by the deceased.

          Even if we believe that the appellant was responsible for making statement

which led to the discovery of a large number of articles including the head of the dead

body and the knife, it must also to be noticed the discoveries had not been made on one

day. Purported recoveries were made on 25.2.1994 and 1.3.1994. If this was only a needle

to suspicion on the appellant, the father and other near relatives of the deceased should

have disclosed the same on 22.2.1994 itself or immediately thereafter. They did not do so.

          The High Court furthermore opined that as the blood group of the deceased

was Group-B, the same was sufficient to hold the appellant guilty. It was pointed out to

the High Court that the blood group of the appellant was also B.

          We are therefore of the opinion that keeping in view the well-known principle

that if two views are possible a court of appeal ordinarily would not set aside a judgment

of acquittal and record a judgment of conviction applies in all forms in the instant case.

Keeping in view the loopholes contained in the prosecution case itself we have no doubt in

our mind that the High Court committed a serious error in the facts of the present case in

disregarding the said well-known principle of law.

          For the reasons aforementioned the impugned judgment cannot be sustained.

It is set aside accordingly. The appellant is said to be in jail. He is directed to be set a t

liberty forthwith unless wanted in connection with any other case.

          The appeal is allowed.

                                             .....................J.                                     (S.B. SINHA)

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              .....................J.                (LOKESHWAR SINGH PANTA) NEW DELHI; MAY 8, 2008.