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2024 DIGILAW 1013 (BOM)

Gopal Ashokrao Jadhav v. State of Maharashtra

2024-09-02

S.G.MEHARE

body2024
JUDGMENT : 1. This case is an example of the disrespect to the Court and its orders, even by the counsels who have a long standing practice. On 09.08.2024, the counsel for the petitioner had sought adjournment. Since the Court had already granted him the last opportunity before that date, the Court granted him an opportunity to advance the arguments subject to the cost of Rs.5,000/- to be deposited in this Court. The matter was listed today. It was surprising that Advocate Mr. U.B. Bondar and Mr. V.V. Patil who appear to have a good standing practice did not pay heed to the Courts order and again remained absent when the matter was called. He did not deposit the cost of Rs. 5,000/-. Such conduct of the lawyers having good standing practice would not pass a good message to the newly entered lawyer. If the Court does not take stringent action against such a conduct, it would have been disrespecting the law. Hence, the Sheristedar was directed to contact Advocate Mr. U.B. Bondar on his phone and report his reply. However in the meantime, Advocate Mr. V.V. Patil appeared and made a statement that Mr. Bonder has gone to the funeral of the family member of his friend. He is busy in another matter pending before another Court. The Court expressed displeasure on his reply. The Court informed him that he must argue the matter else stringent action will be taken. He had no brief. The Court was given Court papers to him. Lastly, he prepared with the matter. 2. Heard learned counsel for the injured/petitioner and learned counsel for the accused/respondents. 3. The injured/petitioner has impugned the judgment and order of the learned Additional Sessions Judge, Udgir passed in Criminal Appeal No.1 of 2003 dated 30.08.2005. 4. The petitioner had lodged the report against the respondents alleging that on 25.11.1997 at about 08.30 am, he went to bring milk near Chawle Complex. When he was in front of the Chawle Complex, both accused came in front of him and asked what money they have to pay him. He told that they had taken a hand loan of Rs.12,000/- The accused Vithal was holding iron rod. He assaulted him on his head and accused Shankar assaulted him with knife and stick on his forehead, hand and back. He fell down. Then the accused flee away. He told that they had taken a hand loan of Rs.12,000/- The accused Vithal was holding iron rod. He assaulted him on his head and accused Shankar assaulted him with knife and stick on his forehead, hand and back. He fell down. Then the accused flee away. Many people were gathered on the spot. His maternal brother took him to the police station and police referred him to the hospital. He was under treatment. His report was recorded in the hospital under his signature. 5. The prosecution had examined the injured. His younger brother and nephew were the eyewitnesses to the incident. To corroborate the incident, the prosecution examined the medical officer who had examined the injured immediately after the incident. The prosecution also examined the panch witnesses. However, they did not support the prosecution. The investigation officer proved all panchnamas. 6. Appreciating the evidence, the learned Trial Court held the respondent/accused guilty for the offence punishable under Section 324 r/w 34 of the Indian Penal Code. 7. The respondent had preferred an appeal before the Additional Sessions Judge, Udgir. The learned Additional Sessions Judge reversed the judgment of the Trial Court and acquitted them of the above offences. 8. Learned counsel for the petitioner has vehemently argued that the learned Additional Sessions Judge has not appreciated the evidence correctly and given the findings that they had earlier enmity, had no written document of hand loan, the knife was not recovered, there were discrepancies in the period of happening the incident, Joshi Hospital near the spot of the incident was absent in the spot panchanama comparing the size of the iron rod does not match with injuries and there were ten injuries on the person of the complainant, if such weapon was used for assault, it would likely to cause death of the person. He has referred to the grounds raised in the revision memo and vehemently pressed into service the grounds of objection against the above observations. He would submit that reading the evidence as a whole, the incident was proved. There was no reason to disbelieve the injured in the absence of any circumstances to believe that the injuries were self-inflicted. Merely failing to recover the knife was not sufficient to disbelieve the witnesses particularly the injured. The injured and the accused were relatives. Therefore, the written documents of hand loan was not expected. There was no reason to disbelieve the injured in the absence of any circumstances to believe that the injuries were self-inflicted. Merely failing to recover the knife was not sufficient to disbelieve the witnesses particularly the injured. The injured and the accused were relatives. Therefore, the written documents of hand loan was not expected. He pointed out that the learned Additional Sessions Judge unnecessarily weigh the previous conviction of the father of the petitioner and civil disputes. In the absence of the defence he has erroneously recorded the finding that considering the past of the petitioner and his family, they were troublesome to the accused and their families. He has erroneously disbelieved the case only on the basis of the evidence that the injuries were not of such a nature that the person injured may fall unconscious. He would submit that in every case, the corroboration of the injuries is not the mandate of law. The Court must be satisfied that the evidence led before the Court was unbelievable based upon the circumstances brought by the accused. The omissions and contradictions must be material and significant. The Court must appreciate the evidence that the evidence produced before it inspires confidence that the incident happened. The learned Additional Sessions Judge erred in not believing the evidence of the investigation officer who drew the spot panchnama. The learned Additional Sessions Judge disbelieved the evidence of ASI on a technical ground of having no signature of the medical officer on the statement of the injured. It was not the prosecution case that the petitioner was suffering from serious injuries that he was unable to give the statement due to his health. The learned Additional Sessions Judge without any cogent reason branded the complainant and the witnesses as not law abiding persons. Wrong findings were recorded that the injured and witnesses may go to any extent to lie for their own benefit. He would submit that the appreciation of the evidence by the learned Additional Sessions Judge is contrary to the facts of the case and probability of the incident. The judgment and order of conviction of the Magistrate was legal and proper but it has been erroneously quashed and set aside. 9. Learned counsel for the accused has vehemently argued that the witnesses as regards the incident were inconsistent. The judgment and order of conviction of the Magistrate was legal and proper but it has been erroneously quashed and set aside. 9. Learned counsel for the accused has vehemently argued that the witnesses as regards the incident were inconsistent. The learned Additional Sessions Judge was correct in holding that it was impossible to fall unconscious. There was no recovery of the weapon under Section 27 of the Indian Evidence Act. The spot of the incident was doubtful. The conduct of the witnesses was also unnatural. The learned Additional Sessions Judge has correctly observed that Section 341 of the Indian Penal Code was not added. Therefore, the charges were defective. There were material and significant contradictions and omissions in the evidence of the witnesses. The signature of the medical officer on the statement of the complainant reduced into writing in the hospital was essential to believe its veracity. The previous enmity was correctly believed. The absence of documentary proof of hand loan was the important aspect to establish the cause of the assault. The motive has not been proved. The presence of PW-2 on the spot of incident was doubtful. Though the prosecution had a case that many persons were gathered on the spot of the incident, not a single independent witness was examined. Therefore, the learned Additional Sessions Judge has correctly raised the doubt on the veracity of the complainant. The complainant was not even consistent about the injuries caused to him. The documents are prepared antedated. The findings of the learned Additional Sessions Judge were based on the appreciation of evidence. The Revisional Court cannot re-appreciate the evidence and convert the judgment of the acquittal into conviction if the view of the Trial Court is possible. To bolster his argument, he relied on the case of Vimal Singh Vs. Khumar Singh and Another, (1998) 7 SCC 223 . Both judgments were read before this Court. A serious objection as regards the appreciation of evidence by the learned Additional Sessions Judge has been raised. The learned Additional Sessions Judge, this Court has not erred in recording the finding that there were contradictions in the statements of the witnesses. 10. Firstly the Court would deal with the issue whether not adding a Section or not framing the charge of such offence vitiates the trial. 11. The learned Additional Sessions Judge, this Court has not erred in recording the finding that there were contradictions in the statements of the witnesses. 10. Firstly the Court would deal with the issue whether not adding a Section or not framing the charge of such offence vitiates the trial. 11. The charges are framed against the accused as provided in Section 211 of the Code of Criminal procedure (‘Code’ for short). The purpose of charge is to tell an accused as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty what the prosecution intends to prove against him. Section 215 of the Code speaks of the effect of errors in framing the charge. As per this Section error in stating either the Section of the offence or the provision of the Section is not material. The charge if any not framed and the offence for the which the charge is not framed and the trial went on even then it could not be said that the trial vitiates. The Purpose is to make the accused know what offence he has committed and he has to refute the credibility of the prosecution case by putting an appropriate and relevant defence. In this case one of the Section was not applied and charge for that offence was also not framed. The injured or prosecution did not complain about it. For the first time the learned first appellate Court find it and recorded it a ground to disbelieve the prosecution. The findings of the learned Additional Session Judge that the not framing a charge of the offence under Section 341 of I.P.C. is a ground to raise the doubt in the prosecution witnesses is an apparent error. 12. Not believing the injured witness and law on corroboration also need discussion. 13. To appreciate the evidence of the injured witness, the Court should bear in mind: (1) Their presence at the time and place of occurrence cannot be doubted.(2) They do not have any reason to omit the real culprits and falsely implicate the accused. Appreciation of evidence is the process through which a Judge knows, understands and realizes the facts to record the conclusion. Marshaling and appreciation of the evidence in correct perception are the souls of the Judgment the Judge writes. Appreciation of evidence is the process through which a Judge knows, understands and realizes the facts to record the conclusion. Marshaling and appreciation of the evidence in correct perception are the souls of the Judgment the Judge writes. Proper appreciation of the evidence avoids the incorrect conclusion. If the evidence is to be appreciated to believe the existence of the things that happen in the daily life of a human being. Appropriate appreciation of the evidence appeals to the mind of the prudent man to believe that such a thing exists or does not exist. The evidence of the injured witness cannot be discarded in toto on the ground of inimical disposition towards the accused when the evidence is tested in the light of broad probabilities. 14. The law is well settled that the injured is the best witness; he cannot substitute the wrong person for his actual assailant and should not be disbelieved for the minor discrepancies. 15. The assailants are the close relatives of the injured. Hence, there is no question to doubt their identification. The evidence of such a witness could not be thrown for the minor discrepancy in the spot of the incident when otherwise the spot of the incident was proved by the inured and the Investigation Officer. In such circumstances not supporting the witnesses on the spot panchanama would not make the prosecution case doubtful. The evidence should be appreciated as a whole. The law also well settled that the evidence of the Investigation Officer cannot be thrown at thrash hold only being a Police Officer. He is the witness who visits the spot of the incident, looks at it, searches for the incriminating evidence, collects other circumstantial evidence from the spot of occurrence and understands the situation by his senses. Unless his evidence raises serious doubt about his conduct and is improbable, the evidence of the Investigation Officer cannot be ignored for appreciating the facts which were in his knowledge regarding the crime. 16. Section 162 of the Criminal Procedure Code provides for the effect of the contradictory statements of the witnesses. Unless his evidence raises serious doubt about his conduct and is improbable, the evidence of the Investigation Officer cannot be ignored for appreciating the facts which were in his knowledge regarding the crime. 16. Section 162 of the Criminal Procedure Code provides for the effect of the contradictory statements of the witnesses. In its explanation clause it has been provided that an omission to state a fact or circumstances in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 17. Section 145 of the Evidence Act is another provision that speaks of the cross-examination as to previous statements in writing. The section provides the previous statement of the witness in writing or reduced to writing. The previous statement of the witness shall be shown to the witness while proving the contradictions and omissions in his/ her previous statement. The opposite side has a right either to prove the extraneous material brought on record of which he/she was not made aware and those are the significant contradictions and omissions. It is normally done to impeach the credibility of the witness. The term ’witness’ in this Section is in the context of a person who made a statement of facts relevant to the facts in issue, which is reduced in writing under Section 161 of the Code in criminal cases during the investigation and before filing a charge sheet. 18. It is explicit that the statement of the witnesses earlier recorded under Section 161 is evidence to bring the facts first-hand. The deposition or leading the evidence before the Court of law is substantial evidence. The veracity of each witness is tested by considering his/her previous statement. Reading the above provisions, it can be said that it restricts to the witness and his statement recorded previously and not the evidence led before the Court in the course of the trial. The evidence of one witness recorded in the Court can not be contradicted by the evidence of another evidence recorded in the Court during the trial. 19. Many times, there is confusion about contraction, omission and corroboration of the evidence. Corroborative evidence is evidence that strengthens or confirms already existing evidence. The evidence of one witness recorded in the Court can not be contradicted by the evidence of another evidence recorded in the Court during the trial. 19. Many times, there is confusion about contraction, omission and corroboration of the evidence. Corroborative evidence is evidence that strengthens or confirms already existing evidence. In Courts, it is used to support the testimony of the witness. It strengthens or makes the prosecution evidence already produced more certain. 20. Section 134 of the Evidence Act speaks of the number of witnesses to be examined. It provides that no particular number of witnesses shall in any case be required for the proof of any fact. Neither the number of witnesses nor the quantity of evidence is required. There should be a quality evidence. The law is well settled that corroboration is not a rule of law but one of the cautions and may resorted to as an assurance. 21. The Hon’ble Supreme Court in Kunju @ Balachandran vs State Of Tamil Nadu, AIR 2008 SC 1381 held that a conviction could be based on the testimony of a sole eyewitness. The test is whether the evidence has a ring of truth and it is cogent, credible and trustworthy or otherwise; corroboration would be required only if the witness is neither wholly reliable or wholly unreliable. 22. The Court, appreciating the evidence of an injured person corroborated with medical evidence, should record the specific finding negating or discarding the injured, who is the first witness to the incident. The testimony of an injured witness could not be doubted outrightly if the weapons were recovered at the instance of the accused and unless his evidence does not inspire the confidence that the injuries are not possible. The Court should bear in mind the tendency of the accused to hide, disappear or eliminate the evidence soon after committing a crime. The recovery of a weapon at the instance of accused is normally done after his arrest. Nowadays, the persons particularly the accused are well aware of the procedural law and the legal flaws. The legal services are available at the doorsteps. In a few cases, the accused are arrested immediately after the incident. They get an opportunity to prepare with the defence from the date of the commission of the offence and their arrest. Nowadays, the persons particularly the accused are well aware of the procedural law and the legal flaws. The legal services are available at the doorsteps. In a few cases, the accused are arrested immediately after the incident. They get an opportunity to prepare with the defence from the date of the commission of the offence and their arrest. The recovery of the weapon under Section 27 of the Evidence Act is corroborative evidence. If we follow the pronouncement of the Hon’ble Supreme Court in Kunju (Supra), the probability of causing no injuries by the recovered weapons at the instance of the accused under Section 27 of the Evidence Act, particularly on its size without any material from the Medical Officer, the testimony of the injured could not be disbelievable, and brushed aside. 23. Bare enmity, even if proved, cannot be a ground to discard the evidence of a witness if it inspires confidence. It is also well settled principle of law that enmity is a double-edged weapon. It can be a ground for false implication or for assault. Therefore, it is to be examined with caution and diligence. 24. In normal life, the hand loan transactions between persons are done on acquaintance, trust and faith. Taking a hand loan from relatives is very common in India. Family relations are valued more than creating evidence of such transactions. The learned Additional Sessions Judge based upon no written proof of hand loan transaction, disbelieved the injured. He also recorded the reasoning that the motive is not proved. The question arises for consideration whether motive is an absolute requirement to prove the guilt. 25. Section 8 of the Evidence Act is relevant to the question that has fallen for consideration. It speaks of the motive, preparation and previous or subsequent conduct of the accused. It provides that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The question needs to be dealt with in the context of a crime committed by the accused and when the prosecution is burdened to prove a motive of the accused. Normally, the criminal trials are based on direct or ocular evidence or the circumstantial evidence. In the cases based upon the circumstantial evidence require proof of a complete chain of circumstances to infer the guilt of the accused. The direct evidence of motive is seldom. Normally, the criminal trials are based on direct or ocular evidence or the circumstantial evidence. In the cases based upon the circumstantial evidence require proof of a complete chain of circumstances to infer the guilt of the accused. The direct evidence of motive is seldom. The motive and intention of the accused are locked in the mind of the accused. It is to be gathered from the conduct of the accused and the circumstances of the case. 26. The Hon’ble Supreme Court in Shivaji Genu Mohite Vs. State of Maharashtra, AIR 1973 SC 55 held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the Court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy. 27. The Hon’ble Supreme Court in Amitava Banerjee @ Amit @ Bappa Banerjee vs State Of West Bengal, (2011) 12 SCC 554 held that motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding the commission of the offence is available. 28. The Court has to appreciate the evidence as a whole to arrive at the conclusion that whether, in the given circumstances, the incident was possible. The long and previous enmity is also not the ground to disbelieve the witnesses if their evidence inspires confidence. A small discrepancy or omission to mention any landmark on the spot of the incident is also not the ground to throw the evidence of the injured. In the absence of any cogent and reliable evidence, the Court cannot brand a person speaks lie, and he is troublesome. The mere conviction of one of the family members is also not an acceptable reason to disbelieve the veracity of the witnesses, particularly the injured. In the absence of any cogent and reliable evidence, the Court cannot brand a person speaks lie, and he is troublesome. The mere conviction of one of the family members is also not an acceptable reason to disbelieve the veracity of the witnesses, particularly the injured. It is not essential in each case to have corroborative evidence. The Court is of the view that the discrepancy in the period of the incident is also not the ground to throw the evidence of the witnesses. The Court cannot imagine why a particular person/witness did not act in a particular way. The primary rule of appreciating the evidence is to evaluate the evidence produced by the prosecution. What the prosecution ought to have done has no relevance to the appreciation of the evidence. 29. The law on the legal issue raised, and examining the judgment and reasoning of the learned Additional Sessions Judge, Udgir, the Court is of the view that his findings are contrary to the law of appreciation of the evidence. The learned Additional Sessions Judge did not follow the doctrine of appreciation of evidence properly. Not applying a particular section on the charge creates doubt is also erroneous and illegal. 30. The Court is aware that the revisional Court cannot re- appreciate the evidence. But, it does not prohibit the Court as a rule. If any glaring feature is brought to the notice of the High Court which would otherwise is testamount to miscarriage of justice, the High Court may re-appreciate the evidence. However, in this case, the reasoning recorded by the two Courts has been examined, which speaks about the role attributed to each of the witnesses. As mentioned above, the Court is not satisfied with the reasoning of the learned Additional Sessions Judge. Therefore, this Court is of the view that the revision application deserves to be allowed and case is to be remitted to the Additional Sessions Judge, Udgir to rewriting the judgment by giving an opportunity to both the sides. Hence, the following order : ORDER (i) Criminal Revision Application is allowed. (ii) The impugned judgment and order of the learned Additional Sessions Judge, Udgir passed in Criminal Appeal No.1 of 2003 dated 30.08.2005 is quashed and set aside. Hence, the following order : ORDER (i) Criminal Revision Application is allowed. (ii) The impugned judgment and order of the learned Additional Sessions Judge, Udgir passed in Criminal Appeal No.1 of 2003 dated 30.08.2005 is quashed and set aside. (iii) The case is remitted to the Additional Sessions Judge, Udgir, for rewriting the judgment after giving an opportunity to the petitioner as well as to the respondents. (iv) Since the matter is pretty old, the Court expects the Additional Sessions Judge, Udgir, to prioritise this case and endeavour to dispose of the case within two months from the receipt of this order. (v) The record and proceeding be returned to the learned Additional Sessions Judge, Udgir. (vi) Rule is made absolute in the above terms. (vii) After disposal of the matter, learned counsel Mr. Bondar for the petitioner appeared and requested to call back the order dated 02.09.2024. Learned counsel for the petitioner requests that cost may not be imposed. In fact, it was a condition precedent to argue the matter. The Court was to literally force his junior to argue the matter. Thereafter, he argued the petition. However, to avoid the blame on the lawyer, this Court asked Mr. Bondar how he would like to pay the cost. He said that he would donate it to an institution for orphans. Therefore, the order imposing the cost of Rs. 5,000/- is modified as follows:- A) Instead of the word ‘cost’, it be read as a donation of Rs. 5,000/- to be paid to the orphanage institution of the choice of learned counsel Mr. Bondar.