GAJANAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant along with Dyandeo were tried for an offence under S. 302/34 Indian Penal Code by the learned Sessions Judge, Buldhana in respect of an occurrence which took place on 10/9/1984 in which Suryabhan died after receipt of a blow on his head resulting in multiple fracture of the scalp bone. The trial court found that Gangubai, Public Witness 2 and Ukanda, Public Witness 3, who claimed to have seen the deceased being "dragged" (pulled) by the appellant after hitting him on the head with a heavy stone, had actually not seen the occurrence or any part thereof and their evidence did not inspire confidence. The trial court also referred to the medical evidence provided by Dr Kashinath Motiram, Public Witness I, and found that the account given by Public Witness 2 and Public Witness 3 was in conflict with the medical opinion. The trial court further opined that the prosecution had introduced letter Ext. P-22, the alleged extrajudicial confession of the appellant with a view to buttress the prosecution case. It was held that the motive as alleged by the prosecution had not been established and that the occurrence did not take place in the manner and at the place suggested by the prosecution. The trial court, on the basis of these findings acquitted the appellant and his co-accused. The High court on an appeal by the State against acquittal reversed the findings insofar as the appellant is concerned and convicted him of an offence under Section 302 Indian Penal Code and sentenced him to undergo life imprisonment, but maintained the acquittal of the co-accused since the learned counsel for the State did not press the appeal against his acquittal.

(2.) We have heard learned counsel for the parties and critically analysed the evidence on the record.

(3.) The manner in which the High court has dealt with the appeal against acquittal has left much to be desired. The High court treated Public Witness 2 and Public Witness 3 as if they were the eyewitnesses of the occurrence and opined that the observations of the trial court "that there is no direct evidence in this case is obviously wrong". In the words of the High court "merely because these witnesses did not see the actual assault by stone, their clinching evidence cannot be discarded". We fail to understand the justification for criticism of the trial court as noticed above. If the High court itself found that Public Witness 2 and Public Witness 3 had not seen the actual assault on the deceased how they could be treated as providing direct evidence of assault is not at all intelligible. Similarly, while dealing with letter Ext. P-22, the High court, without at all dealing with the reasons given by the trial court to disbelieve the evidence of Public Witness 7 and the recovery of the letter Ext. P-22, opined that one sentence in that letter amounts to confession and went on to rely upon the same as a piece of extra-judicial confession. The High court apparently ignored that there was no proof worth the name on the record to show that letter Ex. P-22 had been written by the appellant. The appellant in his statement under Section 313 Criminal Procedure Code denied the authorship of the letter. Public Witness 7 who claimed to have received the letter from the appellant, was working as a labourer with the appellant and on his own admission he had never received any letter from the appellant nor had he any other occasion to see his handwriting. How then could Public Witness 7's evidence be considered as sufficient to prove that it was the appellant and the appellant alone who had written letter Ext. P-22 The prosecution led no other evidence to prove the handwriting of the appellant. No expert was examined either. Even otherwise, reading the letter Ext. P-22 as a whole we do not find any extra-judicial confession to have been made by the appellant, assuming for the sake of arguments that the letter was written by the appellant. The High court was obviously in error in holding that Ext. P-22 was written by the appellant or that the letter amounted to an extra-judicial confession.