Supreme Court of India
GANESH SHAMRAO ANDEKAR & ANR.versusSTATE OF MAHARASHTRA
- Citation
- 2017 INSC 250
- Decided
- 30 March 2017
- Disposal
- Directions issued
- Bench
- R F NARIMAN
Holding
An order of acquittal may be set aside when it is perverse or unreasonable; here the trial court's acquittal was perverse, so the High Court's conviction under Section 302 read with Section 34 stands.
Summary
The appellants, Ganesh and Avinash Andekar, were convicted of murder under Section 302 read with Section 34 of the IPC for the killing of their neighbour Raghunath, based on the testimony of the victim's daughter and wife who claimed to have witnessed the assault. The trial court had acquitted all accused, finding the prosecution evidence insufficient, but the High Court reversed that decision, holding the acquittal perverse. On appeal, a split Supreme Court bench examined whether the High Court was justified in overturning the acquittal, focusing on the credibility of eye‑witnesses, forensic blood‑group evidence, and the promptness of the FIR. The majority concluded that the trial court's order was unreasonable and that the High Court correctly re‑appraised the evidence, thereby upholding the convictions. A dissenting opinion argued that the trial court's acquittal was not manifestly erroneous. The appeal was dismissed, and the convictions were affirmed.
Issues considered
- The trial court's acquittal of the accused under Section 302 IPC was unreasonable, palpably wrong, manifestly erroneous, or demonstrably unsustainable.
- Whether the eye‑witness testimonies of the victim's daughter and wife can be trusted despite inconsistencies and alleged lack of physical injury evidence.
- Whether forensic blood‑group evidence linking the accused to the crime scene is sufficient to support conviction.
- Whether the High Court was entitled to overturn an acquittal on the basis of re‑appraisal of the entire evidence.
Legislation cited
- Code of Criminal Procedure, 1973s. 313, s. 386
- Indian Penal Code, 1860s. 143, s. 147, s. 148, s. 149, s. 201, s. 302, s. 34, s. 426
Subjects
murderSection 302 IPCSection 34 IPCappeal against acquittaleye‑witness testimonyforensic evidenceburden of proofcriminal procedure
Judgment
[2017) 5 S.C.R. 277
GANESH SHAMRAO ANDEKAR & ANR. A
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 547 of2007)
MARCH 30, 2017 B
[R. F. NARIMAN AND PRAFULLA C. PANT, JJ.]
Penal Code, 1860- s.302 rlw s.34 - Murder -Appeal against
the acquittal by trial court - Scope for interference - Appellants
and victim-deceased were neighbours - There was enmity between
them - Prosecution case that after a heated exchange, appellants
c
chased down the deceased and assaulted him with weapons - When
accused were chasing deceased, his wife (PW-13) and daughter
(PW-2) had followed them and had witnessed the assault - PW-2
took deceased to the ho~pital where he succumbed to the injuries -
Trial court acquitted all the accused - High Court, however, D
convicted the appellants and two others uls.302 r!w s.34 /PC - On
appeal, held: Per Praful/a C. Pant, J.: Both PW-2 and PW-13 had
described the blows inflicted in their presence, when they reached
the spot and their conduct following the deceased was natural -
Truthfulness of fact that deceased was laken to hospital by PW-2 is
E
corroborated from the evidence on record of PW-3, au/orickl'haw
driver who took deceased to !he hospilal mid same cannot be
doubted only for reason that name mentioned in hospital records
was of different person and no/ of PW-2 - Furlhe1; FIR was prompt
- PW-2 and PW-13 stated that appellant had il?flicted blow in groin
area but there was no injury on the said par/ of body, however, F
same not a reason to disbelieve the statements since a living human
being is not expected to remain motionless while being inflicted with
blow after blows - Furthe1; ocular evidence of the two witnesses
corroborated from the same blood group found 011 stained clothes,
earth sample and weapons recovered from appellants - Theref<Jre,
G
no error of law committed by High Court - Per R.F. Narinum, .T.:
When an order of acquittal is appealed against. it can only be
interfered with when order of trial court is unreasonable, palpably
wrong or demonstrably unsustainable - ln the instanl case, order
of trial court does not fall in any of these categories - Hospital
record shows that deceased was brought to Ho.spit al by one 'R' and H
277
278 SUPREME COURT REPORTS [2017] 5 S.C.R.
A not PW-2, who was not examined by the prosecution - PW-3 has
been disbelieved both by the trial court and the High Court. but
was a key witness on behalf of prosecution and his version destroys
the version oftwo interested eye-wit11esses PW-2 and PW-13 inasmuch
as he specifically states that neither witness was present at the Jpot
when actual assault leading tu murder took place - High Court
8
wrongly states that mentioning of injury at the iliac region of
deceased give strong credence to story of PW-2, here again. iliac
region being region at the backside, there is, in fact, 110 injury near
groin - Insofar as blood group is concerned, blood group of both
the appellants and of deceased is of same group 'B ', .i·o it would not
c necessarily lead to the conclusion that the appellants were there,
given the fact that blood of deceased is also of group 'B ', in any
case, this factor cannot alone outweigh other factors pointed out
by trial court - Thus, for all these reasons the judgment of High
Court reversed and both appellants-accused acquitted.
D Referring the matter to CJI, to constitute an appropriate
bench, the Court
Per Prafulla C. Pant, J.:
HELD: 1. There is no doubt, normally, where the trial court
has acquitted the accused on the ground that charge stood not
proved on the basis of evidence on record, and such view is
E
reasonable, the High Court should not interfere with the same.
However, such general rule cannot be extended against the spirit
of clause (a) of Section 386 of Code of Criminal Procedure, 1973
which empowers the appellate court to reverse the order of
acquittal, and pass sentence on him in accordance with law. [Para
F 11) (286-B-C]
2. In the present case the High Court has given categorical
finding that the finding arrived at by the trial court was perverse,
as such, it cannot be said that the High Court could not have
taken the view supported by evidence on record. [Para 14) [288-
G
D)
3. So far as believing the testimony of PW-2 (daughter of
the deceased) and PW-13 (widow of the deceased) is concerned,
the same cannot be doubted by presuming that being women they
could not have followed the deceased who was running to save
his life from the accused. Both the witnesses are adults, one aged
H twenty three years and another aged forty years. The two
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 279
MAHARASHTRA
witnesses have only described the blows inflicted in their presence A
on the body of the deceased after they reached at the spot. It
cannot be ignored that there are nine incised wounds and only
the incised wounds given in the presence of the eye witnesses
by the two appellants have been narrated by them. It was a day
light incident in which quarrel started in front of the house of the
B
deceased and the presence of the two eye witnesses who are
family members of the deceased was natural, and their conduct
in following the deceased and accused is also natural. [Para 15)
[288-E-G)
4. As to the truthfulness of the fact that the deceased was
taken in the injured condition by PW-2 to hospital, the same cannot c
be doubted only for the reason that name of one 'R' is mentioned
in the hospital as a person who got admitted the injured. The fact
relating to taking deceased to hospital by PW-2 is corroborated
from the evidence on record of PW-3, Autorickshawala. In the
present case the First Information Report is prompt and even
D
the post mortem has been conducted on the same day after
investigation started. Keeping these facts in mind, who got the
deceased admitted is not of much relevance.(Para 17] [289-B-D)
5. There is no reason to disbelieve the statement of PWs 2
and 13 on the ground that while they stated that the appellant
inflicted blow in the groin area but there is no injury on the said E
part of the body of the deceased. This is for the reason that a
living human being is not to remain motionless while being
inflicted with blow after blow. If the injury is near thigh or on the
iliac crest, instead of groin area, this is not sufficient to hold that
the testimony of the witnesses is false •. Also, the ocular evidence F
of PW 2 and PW 13 is further corroborated with the report
received from the Forensic Science Laboratory regarding the
blood group 'B+' found on the blood stained clothes and earth
sample collected. The same blood group was found on the blood
stained weapons recovered on disclosure made by the appellants.
[Para 18) [289-E-G] G
Manu Sharma v. State of Delhi (2010) 6 SCC 1 : [2010)
4 SCR 103; Bhagwan Singh and Others v. State of MP
(2002) 4 sec 85 - relied on.
Murugesan v. State (2012) 10 SCC 383 : [2012] 13
SCR 1; State of Punjab v. Kamai/ Singh (2003) 11 SCC H
280 SUPREME COURT REPORTS [2017) 5 S.C.R.
A 271 : [2003) 2 Suppl. SCR 593 - referred to.
Case Law Reference
[2010) 4 SCR 103 relied on Para 11
(2012) 13 SCR 1 referred to Para 12
(2002) 4 sec ss relied on Para 13
B
(2003) 2 Suppl. SCR 593 referred to Para 16
Per R. F. Nariman, J. (dissenting}:
HELD: 1. The High Court, in its judgment reversing the
trial court, has held that even if PW-3 is not found trustworthy,
c the court cannot throw out the entire prosecution case. However,
PW-3 is a key prosecution witness. As he is a witness relied
upon by the prosecution, his version destroys the version of the
two interested eye-witnesses PW-2 and PW-13 inasmuch as he
specifically states that neither was present at the spot when the
actual assault leading to murder took place. [Para 5) (291-H; 292-
D A-B)
2. The High Court also wrongly states that mentioning of
an injury at the iliac region of victim's body gives strong credence
to the story of PW-2, which, according to the High Court, is an
injury near the groin. The High Court states that if PW-2 had not
E witnessed the incident, she would not be in a position to speak
about this particular injury. Here again, the iliac region being a
region at the backside, obviously, there is, in fact, no injury near
the groin. [Para 6) [292-B-C]
3. Turning to the fact that 'R' is mentioned as the person
who brought the deceased to the hospital in the hospital register,
F
the High Court only states that it does not find any substance in
this contention because PW-2 and PW-13 are eye-witnesses. This
does not answer unimpeachable documentary evidence in the
form of the hospital register entry, or the fact that 'R' was not
examined by the prosecution. [Para 7) [292-D]
G 4. On not sustaining abrasions on PW-2's legs and hands,
the High Court only says witnesses do make exaggerations in
such cases but that cannot be a reason to disregard and disbelieve
their entire story. This again is hardly the way in which to deal
with an appeal against acquittal, where, unless perverse, the trial
H court judgment ought not to be interfered with.[Para 8][292-E-FJ
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 28 l
MAHARASHTRA
5. After going into the evidence of PW-13, who stated that A
one 'S' was present at the time of the assault, the High Court
adverts to the fact that 'S', though an independent eye-witness,
turned hostile, but gives no importance to this fact. (Para 9) (292-
F-G)
6. The High Court referred to the Chemical Examiner's B
Report in which it was stated that the blood group of deceased is
'B' and the blood group of Appellant No.1 and Appellant No.2 is
also 'B'. If that is so, the fact that the earth, PW-2 clothes, T-
shirt and lungi, and weapons all have blood group 'B', would not
necessarily lead to the conclusion that the blood of appellants
happens to be there given the fact that deceased-victim's blood c
was also of blood group 'B'. In any case, this factor alone cannot
outweigh all the other factors pointed out by the trial court. [Para
11] (293-B-C]
7. In any case, no active and specific role has been assigned
to appellant no.2 in the murder of deceased. Given the fact that D
the FIR and the evidence of PW-2 to 13 (even as found by the
High Court) contains many incorrect facts (for example, 6 ladies
who were acquitted are also sought to be roped in), and given
the fact that there is enmity between the deceased-victim's family
and the accused, it is reasonable to say that, in any case, Appellant
No.2 should be given the benefit of doubt. [Para 13) (293-E-G] E
8. When an order of acquittal is appealed against, it can
only be interfered with when there are compelling and substantial
reasons for doing so and if it is found that the trial court order is
clearly unreasonable, palpably wrong, manifestly erroneous, or
d~monstrably unsustainable. The trial court order did not fall in F
any of these categories and the High Court in convicting the
appellants and reversing a well reasoned order of acquittal, has
committed a grave error. [Para 12) (293-D-E]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
547 of2007.
G
From the Judgment and Order dated 20.02.2007 of the High Court
of Judicature at Bombay in Criminal Appeal No. 643 of 1989.
U. R. Lal it, Sr. Adv., Santosh Kumar, Mehul Sharma, Raj iv Ranjan
Mishra, V. Sushant Gupta, Mushtaq Ahmad, Advs. for the Appellants.
Sushi! Karanjkar. Nishant Ramakantrao Katneshwarkar, Advs.
•
for the Respondent. H
282 SUPREME COURT REPORTS (2017) 5 S.C.R.
A The Judgments of the Court were delivered by
PRAFULLA C. ~ANT, J. I. This Appeal is directed against the
judgment and order dated 20'h February, 2007 passed by High Court of
judicature at Bombay, whereby Criminal Appeal No. 643 of 1989 filed
by the respondent-State was allowed, and the appellants are convicted
B under Section 302 read with Section 34 oflndian Penal Code (for brevity
"l.P.C."), and each one of them has been sentenced to imprisonment for
life and to pay fine of' 5,0001- in default of payment of which the defaulter
convict is directed to undergo further imprisonment for a period of one
year.
c 2. Prosecution story, in brief, is that appellant no. 2 and deceased
were neighbours and they used to live with their families in Guruwar
Peth, Pune. There was enmity between the two families. Earlier also a
criminal case was filed against accused Shamrao Andekar (since died)
and his brothers when an attempt was made to commit murder of
Raghunath (deceased in the present case). In this background, the incident
D in question is said to have taken place. It is stated in the First Information
Report (Exh.-38) that on 14.10.1986 at about 3.00 p.m., Raghunath was
taking rest on a cot outside of his door when accused Shamrao Andekar
came in a drunken condition and started hurling filthy abuses at him: The
deceased objected to the behavior of the said accused, and heated
E exchange of words started between the two. Meanwhile, appellants
Ganesh Andekar and Avinash Andekar (both sons of Shamrao Andekar)
and others also reached there. They were armed with weapons and
attempted to assault the deceased. On this, Raghunath started running
to save his life and was chased by the accused persons. They succeeded
in catching Raghunath in Gadikhana Chowk near Rajesh Boarding House.
F When the accused chased the deceased, PW-2 Rohini (daughter of the
deceased), and PW-13 Shakuntala (wife of the deceased) followed them.
Ganesh Andekar (appellant no. I) stabbed the deceased on his stomach.
Appellant no. 2 Avinash Andekar gave a blow with 'Gupti' (pointed sharp
edged weapon) near groin area of the deceased. Accused Vijay
G Ramchandra Yadav (since died), who was armed with sword, and other
accused also allegedly assaulted the deceased. PW-2 Rohini in an attempt
to save her father fell on him but she was pushed aside. When the
accused left Raghunath (believing him to have died), Rohini took her
father in an Auto rickshaw to Sassoon Hospital, Pune, in the injured
condition. According to prosecution, PW-3 Suresh Chavan was the Auto
H
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 283
MAHARASHTRA [PRAFULLA C. PANT, J.]
rickshawala who helped in taking the injured to hospital. PW-16 Dr. A
Shivram Waghmare gave medical aid to the injured who succumbed to
injuries at about 4.40 p.m. A report (Exh. 38) of the incident was given
by PW-2 Rohini at Police Outpost, Mithi Ganj against the four appellants
and others which included their family members. The said report was
forwarded from Outpost Mithi Ganj to Police Station, Khadak, and a
B
Crime No. 265 of 1986 was registered relating to offences punishable
under Sections 143, 147, 148, 149, 302 read with Section 34 and 426 of
l.P.C., on the same day at 6.30 p.m.
3. PW-19 Suresh Suresh Kulkarni investigated the crime. He got
inquest report prepared through Sub-Inspector Lonakar. Autopsy on the C
dead body was conducted by PW-18 Dr. Laxman Pherwani on the very
day i.e. 14.10.1986 from 9.15 p.m. to 10.15 p.m. He prepared Post
Mortem Examination Report (Exh.70). On completion of investigation,
the Investigating Officer submitted charge-sheet against fifteen accused,
namely, Ganesh Andekar, Shamrao Andekar, Avinash Andekar, Dinesh
Andekar, Vijay Ramchandra Yadav, Bhau Moho!, Vinayak Kadam, D
Shekhar Vardekar, Sathyabhama Vardekar, Laxmi Indapurkar, Rukmini
lndapurkar, Kami Andekar, Sangita Vardekar, Pushpa Andekar and
Gopinath Mane.
4. The case appears to have been committed by the Magistrate to
Court of Session for trial after giving necessary copies to the accused. E
On 26.04.1988, Additional Sessions Judge, Pune, after hearing the parties
framed charge in respect of offence punishable under Sections 147,
148, 149, 302 read with Section 34 and under Section 201 I.P.C. against
all the 15 accused named above who pleaded not guilty and claimed to
be tried. On this, prosecution got examined PW-I Ravindra, PW-2 Rohini
(informant and eye witness), PW-3 Suresh (auto rickshaw wala-eye F
witness), PW-I+ Surkakant, PW-5 Iqbal Ahmed, PW-6 Shivaji Jagtap,
PW-7 Sudh~kar Pardeshi, PW-8 Sandip Valsangkar, PW-9 Rajendra
Lohokare, PW- I 0 Vikas Pawar, PW-11 Malhari Bhise, PW-12 Rangnath
Jagtap, PW-13 Shakuntala (widow of the deceased and eye wintness),
PW-14 Arnn Jadhav, PW-15 Murlidhar Wadkar, PW-16 Dr. Shivram G
Waghmare, PW-17 Sunil Jagdale, PW-18 Dr. Laxman Pherwani and
PW-19 Suresh Kulkarni (Investigation Officer). The evidence was put
to the accused persons under Section 313 of Cr.P.C. whereafter, in
defence, DW-1 Rajnikant Nikam (a photographer) was examined on
behalf of the defence.
H
284 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 5. Learned Additional Sessions Judge, Pune, after considering the
evidence on record, found that charge against the accused persons is
not proved beyond reasonable doubt, and accordingly acquitted all the
fifteen accused vide its judgment and order dated 11.05.1989, passed in
Sessions Case No. 160 of 1987. Aggrieved by the order passed by the
trial court, State of Maharashtra filed an appeal before the High Court.
B
The High Court, after re-appreciating the evidence on record and hearing
the parties, found no infirmity in the finding of the trial court in respect of
accused no. 4, and accused nos. 7 to 15, and dismissed the appeal to that
extent. However, the High Court found that trial court has erred in law
in acquitting the four accused, namely, Ganesh Andekar (A-1 ), Shamrao
c Andekar (A-2), Avinash Andekar (A-3) and Vijay Ramchandra Yadav
(A-5). The High Court convicted these four accused under Section 302
read with Section 34 l.P.C. and sentenced each one of them to
imprisonment for life and to pay fine of~ 5,000/- in default of payment
of which it is directed that further imprisonment for one year shall be
served out. Hence this appeal before us by the four convicts.
D
6. During the period of this appeal, appellant Shamrao Andekar
and appellant Vijay Ramchandra Yadav reported to have died.
7. We have heard learned counsel for the appellants and learned
counsel for the State and perused the record.
E 8. Before further discussion, it is just and proper to mention the
ante mortem injuries recorded by PW-18 Dr. Laxman Pherwani at the
time of autopsy on the dead body of Raghunath. The same are
reproduced from autopsy report (Exh.70):
"1. An incised wound present on right iliac region l" x '!."going
F deep inside near the ii iac crest.
2. An incised wound present on right side back of thigh 1 '!." x '!.''
muscle deep. Margins-Regular.
3. An incised wound present on the back in the centre at level of
thoracic 6. Margins-Regular.
G 4. An incised wound present in the centre of neck l" x Y.".
Margins-Regular.
5. An incised wound right elbow inner aspect l" x '!.".
6. An incised wound left upper arm front aspect l" x '!."margins
Regular.
H 7. An incised wound present in left axilla 1" xv.''.
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 285
MAHARASHTRA [PRAFULLA C. PANT, J.]
8. An incised wound left upper arm outer aspect I" x W'. A
9. An incised wound%" x 11.'' front on right temporal region of
head."
PW-18 Dr. Laxman Pherwani in his oral evidence has stated that
the above mentioned ante mortem injuries were of recent origin and
could have been caused by sharp edged weapon. He further stated that 8
on opening the body, Haematoma on right temporal region was also
found, and there was a crack fracture on right temporal region. The
Medical Officer (PW-18) has opined that the deceased had died of
traumatic and haemerrahagic shock due to multiple injuries. This proves
that Raghunath died a homicidal death. PW-18 has opined that the nine
injuries (quoted above) could have been caused by the weapons like
c
Sword, Knife, 'Gupti' and 'Khukri'. When the weapons seized during
the investigation were shown to the witness, he stated that the injuries
could have been caused with the same.
9. Now, it is to be examined as to whether the appellants Ganesh
Andekar and Avinash Andekar, with common intention, have committed D
the murder ofRaghunath as suggested by prosecution and concluded by
the High Court. It is also to be examined whether the finding of acquittal
recorded by the trial court relating to these appellants was against the
weight of the evidence ofrecord, and it was not the reasonably possible
view considering the testimony of the eye witnesses. E
10. On behalf of the appellants, Shri U. R. Lal it, learned senior
counsel took us through the First Information Report and the prosecution
story narrated by PW-2 Rohini (informant-eye witness) and PW-13
Shakuntala (widow of the deceased-eye witness) and other evidence on
record. It is contended before us by Shri Lal it that it is unnatural that the F
two eye witnesses who are ladies followed the deceased and the accused
with the same speed to witness the incident at Gadikhana Chowk. He
further pointed out that though PW-2 states that she took her injured
father to hospital but from the entry in the hospital register name of one
Rekha is mentioned as the person who got him admitted. It is also
submitted that the two eye witnesses have stated that appellant Avinash · G
Andekar caused injury in the groin area of the deceased but the post
mortem report does not show injury over groin area. It is further submitted
that had the incident taken place in the manner suggested by the
prosecution, the deceased would have rushed inside his house instead of
running towards Gadikhana Chowk. It is argued that since the deceased H
286 SUPREME COURT REPORTS [2017] S S.C.R.
A had many enemies, as such, commission of murder by others cannot be
ruled out. It is also pointed out that no specific role of inflicting injury by
Avinash Andekar is attributed to him, in the First Information Report.
Lastly, it is argued that since two views are possible from the evidence
on record, as such, the High Court erred in reversing the order of acquittal
recorded by the trial court.
B
11. No doubt, normally, where the trial court has acquitted the
accused on the ground that charge stood not proved on the basis of
evidence on record, and such view is reasonable, the High Court should
not interfere with the same. However, such general rule cannot be
extended against the spirit of clause (a) of Section 386 of Code of
c Criminal Procedure, 1973 which empowers the appellate court to reverse
the order of acquittal, and pass sentence on him in accordance with law.
In Mann Sllarma Vs. State ofDel/1i (2010) 6 SCC 1 (Para 27), this
court has held that following principles have to be kept in mind by the
appellate court while dealing with appeals, particularly against the order
of acquittal:
D
"(i) There is no limitation on the part of the appellate court to
review the evidence upon which the order of acquittal is founded.
(ii) The appellate court in an appeal against acquittal can review
the entire evidence and come to its own conclusions.
(iii) The appellate court can also review the trial court's conclusion
E
with respect to both facts and law.
(iv} While dealing with the appeal preferred by the State, it is the
duty of the appellate court to marshal the entire evidence on record
and by giving cogent and adequate reasons set aside the judgment
of acquittal.
F (v) An order of acquittal is to be interfered with only when there
are "compelling and substantial reasons" for doing so. If the order
is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the appellate court
is first required to seek an answer to the question whether findings
G , 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. Conversely, ifthe appellate court holds, for reaso11s to
be recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities, it can reappraise the
H evidence to arrive at its own conclusion.
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 287
MAHARASHTRA [PRAFULLA C. PANT, J.]
(vii) When the trial court has ignored the evidence or misread the A
material evidence or has ignored material documents like dying
declaration/report of ballistic experts, etc. the appellate court is
competent to reverse the decision of the trial court depending on
the materials placed."
12. In Murugesan Vs. State (2012) 10 SCC 383 (Para 34), this B
Court has held that -
"34 .... a possible view denotes an opinion which can exist or be
formed irrespective of the correctness or otherwise of such an
opinion. A view taken by a court lower in the hierarchical structure
may be termed as erroneous or wrong by a superior court upon a c
mere disagreement. But such a conclusion of the higher court
would not take the view rendered by the subordinate court outside
the arena of a possible view. The correctness or otherwise of any
conclusion reached by a court has to be tested on the basis of
what the superior judicial authority perceives to be the correct
D
conclusion. A possible view, on the other hand, denotes a conclusion
which can reasonably be arrived at regardless of the fact where
it is agreed upon or not by the higher cou1i. The fundamental
distinction between the two situations have to be kept in mind. So
long as the view taken by the trial court can be reasonably formed,
regardless of whether the High Court agrees with the same or E
not, the view taken by the trial court cannot be interdicted and
that of the High Court supplanted over and above the view of the
trial court.
13. In Bhagwan Singh and Others Vs. State of M.P. (2002) 4
sec 85 (Para 7), this court has made following observation: F
"7. We do not agree with the submissions of the learned counsel
for the appellants that under Section 378 of the Code of Criminal
Procedure the High Court could not disturb the finding of facts of
the trial court even if it found that the view taken by the trial court
was not proper. On the basis of the pronouncements of this Court, G
the settled position oflaw regarding the powers of the High Court
in an appeal against an order of acquittal is that the court has full
powers to review the evidence upon which an order of acquittal
.is based and generally it wit I not interfere with the order of acquittal
because by passing an order of acquittal the presumption of
H
288 SUPREME COURT REPORTS [2017] 5 S.C.R.
A innocence in favour of the accused is reinforced. The golden
thread which runs through the web of administration ofjustice in
criminal case is that if two views 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. Such is not a jurisdiction limitation on
B
the appellate court but Judge-made guidelines for circumspection.
The paramount consideration of the court is to ensure that
miscarriage of justice is avoided. A miscarriage of justice which
may arise from the acquittal of the guilty is no less than from the
conviction of an innocent. In a case where the trial court has
c taken a view ignoring the admissible evidence, a duty is cast upon
the High Court to reappreciate the evidence in acquittal appeal
for the purposes of ascertaining as to whether all or any of the
accused has committed any offence or not ... "
14. In the present case the High Court has given categorical finding
D that the finding arrived at by the trial court was perverse, as such, it
cannot be said that the High Court could not have taken the view supported
by evidence on record.
15. So far as believing the testimony of PW-2 Rohini (daughter of
the deceased) and PW-13 Shakuntala (widow of the deceased) is
E concerned the same cannot be doubted by presuming that being women
they could not have followed the deceased who was running.to save his
life, and chased by the accused. Both the witnesses are adult, one aged
twenty three years and another aged forty years. The two witnesses
·have only described the blows inflicted in their presence on the body of
the deceased after they reached at the spot. It cannot be ignored that
F there are nine incised wounds and only the incised wounds given in the
presence of the eye witnesses by the two appellants have been narrated
by them. It was a day light incident in which quarrel started in front of
the house of the deceased and the presence of the two eye witnesses
who are family members of the deceased was natural, and their conduct
G in following the deceased and accused is also natural.
16. So far as the argument raising possibility of commission of
murder by other than the accused mentioned in the F.l.R. is concerned,
that would be a mere conjecture. This court in State of Punjab Vs.
Karnail Singh (2003) 11 SCC 271 (Para 12), has held that the
prosecution is not required to meet any and every hypothesis put forward
H
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 289
MAHARASHTRA [PRAFULLA C. PANT, J.]
by the accused. It must grow out of the evidence in the case. If a case A
is proved perfectly, it can be argued that it is artificial, and where the
case has some flaws inevitable because human beings are prone to err,
it is argued that it is a doubtful story. Proof beyond reasonable doubt is a
guideline, not a fetish. A judge does not preside over a criminal trial
merely to see that that no innocent man is punished. A judge also presides
B
to see that a guilty man does not escape. Both are public duties.
17. As to the truthfulness of the fact that the deceased was taken
in the injured condition by PW-2 Rohini to hospital, the same cannot be
doubted only for the reason that name of one Rekha is mentioned in the
hospital as a person who got admitted the injured. The fact relating to
taking deceased to hospital by PW-2 Rohini, is corroborated from the c
evidence on record of PW-3 Suresh Chavan, Autorickshawala. In the
present case the First Information Report is prompt and even the post
mortem has been conducted on the same day after investigation started.
Keeping these facts in mind as to who got admitted the deceased is not
of much relevance. It has been put to PW 19 by the defence counsel in D
cross-examination that Rekha was sister of Ashok Appa Kolekar
(husband of PW 2 Rohini). The statement of PW-16 Dr. Shivram
Waghmare corroborates that the deceased was brought to the hospital
at 4.25 p.m. and died at 4.40 p.m.
18. On behalf of the appellants, it is vehemently argued that the
E
eye witnesses have stated that appellantAvinash Andekar inflicted blow
in the groin area but there is no injury on said part of the body. We have
carefully scrutinized the evidence on record and we do not find any
reason to disbelieve the statement of the two eye witnesses on the above
ground for the reason that a living human being is not supported to remain
motionless while being inflicted with blow after blow. If the injury is F
near thigh or on the iliac crest, instead of groin area, in our opinion, this
is not sufficient to hold that the testimony of the witnesses is false. It is
also relevant to mention here that the ocular evidence of PW 2 Rohini
and PW 13 Shakuntala is further corroborated from the report Ext.84
received from Forensic Science Laboratory regarding the blood group
G
'8+' found on the blood stained clothes and earth sample collected.
The same blood group was found on the blood stained weapons recovered
on disclosure made by the appellants.
19. For the reasons as discussed above, there is no error of law
committed by the High Court in re-appreciating the evidence on record
H
290 SUPREME COURT REPORTS [2017] 5 S.C.R.
A and coming to the conclusion that the view taken by the trial court was
perverse with regard to the four accused. Therefore, the appeal is liable
to be dismissed. Accordingly, the appeal of the appellants Ganesh Shamrao
Andekar andAvinash Shamrao Andekar is dismissed. They are on bail.
They shall surrender to serve out the sentence awarded by the High
Court. The appeal of the appellant Shamrao Andekar and Vijay
B
Ramchandra Yadav stands abated.
R. F. NARIMAN, J. !. I have read the draft judgment of my
noble and learned brother but for the reasons stated herein below find it
difficult to agree with his conclusion that the High Court judgment in the
present appeal is correct.
c
2. The facts have been set out in the aforesaid judgment. It has
been noticed that the trial court acquitted all the accused, whereas the
High Court has partly reversed and convicted the appellants under
Section 302 read with Section 34 of the Indian Penal Code.
3. The trial court arrived at the conclusion of acquittal on several
D grounds:
I) It clearly held that the prosecution has failed to establish and
prove the actual place where the deceased was assaulted - ·
whether in front of his house or at some distance at Gadikhana
Chowk in front of the Rajesh Boarding House.
E 2) The trial court adverted to an entry made in the Register
maintained in the hospital in which it shows that the deceased
Raghunath was brought to the hospital by one Rekha Kolekar.
This lady was not examined by the prosecution, and if the
hospital register is true, it falsifies the prosecution case that
F PW-2 Rohini brought the deceased to the hospital.
3) A perusal of the FIR would show that the time at which it was
recorded is not stated. Further, there is no material on record
to show that the Investigating Officer had forwarded a ~opy
of the FIR to the Magistrate concerned at the earliest available
opportunity.
G
4) PW-2 Rohini specifically stated that she sustained abrasions
on her hands and legs in order to save her father. This is not
proved from the record, and would therefore cast a doubt as
to the veracity of her evidence.
5) Most importantly, PW-3 Suresh Chavan, who is the
H Autorickshaw driver and is well known to the family of the
,
GANESH SHAMRAO ANDEKAR & ANR. v. STATE OF 291
MAHARASHTRA [R. F. NARIMAN, J.]
deceased, has specifically stated that PW-2 Rohini came to A
the spot of the incident only after the accused ran away from
the spot, making it clear that she was not an eye-witness as
claimed.
6) PW-3 Suresh Chavan's evidence also shows that the mother
ofRohini, PW-13, wife of the deceased was not at the scene B
of the incident, thereby falsifying PW-13 's claim that she was
an eye-witness.
7) PW-3 Suresh Chavan has been disbelieved by both courts,
i.e. the trial court as well as the High Court, but was a key
witness on behalf of the prosecution, as he was known to the
deceased's family, and drove PW-2 Rohini alongwith the c
deceased to the hospital.
8) It is admitted that PW-3 Suresh Chavan and PW-2. Rohini,
though known to each other, did not exchange a single word
in the autorickshaw while PW-2 Rohini and her father were
driven to the hospital, thereby rendering improbable the D
autorickshaw ride to hospital, and consequently the evidence
of PW-2 and PW-13 as a whole.
9) One Sudhakar, who was a friend of the deceased, was also
examined as an eye-witness on behalf of the prosecution.
Being an independent eye-witness, his testimony is of E
importance and cannot be wished away. He has turned
hostile. His son Vijay was also listed in the chargesheet as a
witness on behalf of the prosecution but not examined.
4. All these factors ultimately led the trial court to conclude:
"Normally there is no reason to disbelieve the version of the F
complainant, but in the present case, the relations between 2
families are strained, the evidence of PW. Rohini is inconsistent
with that of PWs. Suresh and Shakuntala. The evidence of these
3 witnesses besides interested in the case of prosecution is mutually
destructive also to the prosecution case. Therefore, cumulative
effect of all these facts is that no reliance can be placed on such G
type of witnesses to hold the accused guilty for assault on the
deceased."
5. As against this, the High Court, in its judgment reversing the
trial court, has held that even if PW-3 Suresh Chavan is not found
trustworthy, the court cannot throw out the entire prosecution case. This H
292 SUPREME COURT REPORTS [2017] 5 S.C.R.
A is a little difficult to understand in view of the fact that PW-3 Suresh
Chavan is a key prosecution witness. As he is a witness relied upon by
the prosecution, his version destroys the version of the two interested
eye-witnesses PW-2 and PW-13 inasmuch as he specifically states that
neither was present at the spot when the actual assault leading to murder
took place.
B
6. The High Court also wrongly states that mentioning of an injury
at the iliac region of Raghunath's body gives strong credence to the
story of PW-2, which, according to the High Court, is an injury near the
groin. The High Court states that ifRohini had not witnessed the incident.
she would not be in a position to speak about this particular injury. Here
c again, the iliac region being a region at the backside, obviously, there is,
in fact, no injury near the groin.
7. Turning to the fact that Rekha Kolekar is mentioned as the
person who brought the deceased to the hospital in the hospital register,
the High Court only states that it does not find any substance in this
D contention because Rohini and her mother are eye-witnesses. This.does
not answer unimpeachable documentary evidence in the form of the
hospital register entry, or the fact that Rekha was not examined by the
prosecution.
8. On not sustaining abrasions on Rohini's legs and hands, the
High Court only says witnesses do make exaggerations in such cases
E
but that cannot be a reason to disregard and disbelieve their entire story.
This again is hardly the way in which to deal with an appeal against
acquittal, where, unless perverse, the trial court judgment ought not to
be interfered with.
9. After going into the evidence of PW-13, who stated that
F Sudhakar was present at the time of the assault, the High Court adverts
to the fact that Sudhakar, though an independent eye-witness, turned
hostile, but gives no importance to this fact. In fact, the High Court
specifically states:
"Most of the other witnesses PW.7 eye witness Sudhakar
G Pardeshi, P.W. G. Sandeep Valsangkar, P.W.9 Rajendra Lohokare
Pan ch witness, P. W. 10 Vikas Pawar - Panch witness regarding
the discovery of lungi at the instance of accused No. I. Ganesh,
have turned hostile and did not support the prosecution."
10. The High Court is impressed by one fact and one fact only
H that given the fact that the incident took place at around 3.30 P.M. to
GANESH SHAMRAO ;-\NDEKAR & ANR. v. STATE OF 293
MAHARASH'IIRA [R. F. NARlMAN, J.)
4.30 P.M., and the fact that the FIR was lodged very soon thereafter, A
there was no time to concoct a false story. This is purely in the realm of
conjecture. Even if true, if so many other factors lead to a reasonabie
doubt in the prosecution story, the accused deserve acquittal.
11. The High Court referred to the Chemical Examiner's Report
in which it was stated that the blood group ofRaghunath is 'B' and the B
blood group of accused no. I and accused no.3 is also 'B'. If that is so,
the fact that the earth, Rohihi 's clothes, T-shirt and lungi, and weapons
all have blood group 'B', would not necessarily lead to the conclusion
that accused no. I and accused no.3 's blood happens to be there given
the fact that Raghunath's blood was also of blood group 'B'. In any
case, this factor alone cannot outweigh all the other factors pointed out c
by the trial court.
12. Having regard to the authorities cited by my noble and learned
brother, there is no doubt that there is no limitation on the part of the
appellate court to review the evidence upon which the order of acquittal
is founded and arrive at its own conclusion. However, when an order of D
acquittal is appealed against, it can only be interfered with when there
are compelling and substantial reasons for so doing and if it is found that
the trial court order is clearly unreasonable, palpably wrong, manifestly
erroneous, or demonstrably unsustainable. In my opinion, the trial court
order did not fall in any of these categories and the High Court in convicting
the appellants and reversing a well reasoned order of acquittal, has E
committed a grave error.
13. Coming to accused no.3, in any case, as has been pointed out
by Shri Lalit, no active and specific role has been assigned to him in the
murder ofRaghunath. Given the fact that the FIR and the evidence of
PW-2 to 13 (even as found by the High Court) contains many incorrect F
facts, (for example, 6 ladies who were acquitted are also sought to be
roped in), and given the fact that there is enmity between the deceased 's
family and the accused, it is reasonable to say that, in any case, accused
no. 3 should be given the benefit of doubt. For all these reasons, I would
reverse the High Court judgment and acquit the two accused before us.
G
PC: In view of the disagreement between us, papers to be placed before
the Hon'ble Chief Justice oflndia to constitute an appropriate bench to
rehear the matter.
Ankit Gyan Matter referred to CJ!.
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