STATE OF MAHARASHTRA Vs. VIJAY SHAMRAO KAMBLE

JUDGEMENT

(1.) BEING aggrieved by order of acquittal passed by Additional Sessions Judge, Kolhapur acquitting the accused under sections 302 and 427 of Indian Penal Code in Sessions Case No.55 of 1986 on 5.6.1987 State has filed this appeal questioning the acquittal.

(2.) HEARD Mrs. Kantharia for the State and Mr. Katikar for the accused. With the assistance of both the learned counsel scrutinized the record and reappreciated the evidence. It is the contention of the learned Public Prosecutor that the trial judge erred in acquitting the accused persons as there was cogent evidence available in the deposition of two eye witnesses. With their assistance we reappreciated the evidence of these two witnesses. Shri Katikar learned counsel appearing on behalf of the respondent-accused submitted that the findings of the learned trial Judge are not perverse or unsustainable in law being based on no evidence and there is therefore no reason to interfere with the order of acquittal. He also claimed that the order of acquitted is not in any manner unjustifiable or unreasonable so as to warrant interference by this Court. 3.The prosecution story stated briefly is that on 24.3.1986 between 12.30/1.00 p.m. the accused is alleged to have committed murder of his grand father Tukaram. In pursuance of the First Information Report lodged to this effect crime No.29/86 was registered by Shirol Police Station and after investigation the accused was charge sheeted under sections 302 and 427 of IPC. In support of its case the prosecution has examined eight witnesses and on appreciation of this evidence the learned trial Judge came to the conclusion that no case is made out by the prosecution and therefore proceeded to acquit the accused. 4.P.W. 1- Ramrao N. Shinde is the pancha to the recovery of an axe from the precincts of village Chipri. The witness proves the statement of accused excluding the culpatory part as Ex. 13. He has also proved the recovery and identified the weapon as article 7. P.W. 2- Chandrakant D. Bhosale knew the deceased for several years. He also knew the accused. On the date of incident he was outside the village and on hearing cries from the house of Tukaram rushed there along with his friends and saw that accused Vinod Kamble was hitting the wooden door frame with axe. He then deposes as to what accused told him regarding he being disinherited by grand father Tukaram. Thereafter they saw old man Tukaram mourning with injury on his head. When asked Tukaram told him that accused Vijay caused the injury. He is therefore witness to immediate disclosure of the name of assailant by the victim and has also seen the accused taking out his rage by hitting wooden door frame. 5.P.W. 3- Dr. Anand K. Kadam conducted the post mortem of the victim. He describes the injuries on the victim and opines that the death was homicidal. There is therefore no dispute that Tukaram met with homicidal death. He proves the medical report of post mortem. P.W. 4- Bhikaji D. Bhosale is eye witness. He gives a lengthy explanation of his relationship with the deceased Tukaram and claims to have seen the incident by peeping into the house. He then says that when he told accused not to beat Tukaram accused rushed to him with the axe in his hand and therefore he ran away. He is therefore not an eye witness to the assault by axe on the deceased. He has given lengthy explanation of his presence near the scene of offence. This witness has been cross examined at length. There are various contradictions in his evidence and statement before the police. The evidence of this man if read as a whole and his cross examination does not inspire confidence. In any case he is not a direct eye witness to the assault. P.W. 5-Raju N. Kambale was there along with few other persons. He heard cries of Tukaram. He says that he saw accused giving blow on the door frame and they overpowered the accused. He also went inside the room and found Tukaram lying injured. Tukaram is alleged to have told this witness also that he was beaten by Vijay Kamble. This witness is also extensively cross examined and several contradictions are brought on record. P.W. 6 - Vimal N. Kambale is the mother of the accused who turned hostile and is therefore of no use. It is pertinent to note that except herself and P.W. 4-Bhikaji anybody could be eye witness to the incident. P.W. 7-Jainuddin N. Nadaf is the police sub-inspector who recorded the FIR and proved it as Ex. 19. He gives clear description of his investigation, proves the statement made by witness and that is all the evidence the prosecution has led to prove the guilt of the accused. 6.The accused has filed written statement under section 313. In his statement he says that there was quarrel over money between him and Tukaram in which Bhikaji P.W. 4 intervened and claimed money. When the accused and his mother were driven out of house by Tukaram they went home and found Tukaram dead. He has stated in his written statement that he suspected Bhikaji to kill grand father. 7.From the entire evidence it is not possible to hold that it points out only to guilt of accused. There is no assurance in his evidence that accused is deity person. We would like to refer to the observations made by the Supreme Court of India in AIR 1996 SC 2478 : "Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has to bear in mind, first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him he would retain that benefit in the appellate court also. Thus appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interferes with or disturbed." 8.In view of this dicta of the Supreme Court and our reappreciation of evidence it is not a case where the evidence assures us to guilt of the accused alone. Hence we see no reason to interfere with the well reasoned order given by the learned trial Judge after watching demeanor of witnesses and appreciating the evidence on record. In the result, therefore, appeal fails and is dismissed. Accused are already on bail. Their bail bonds are cancelled.