STATE OF MAHARASHTRA Vs. BABURAO RAJARAM PATIL

JUDGEMENT

(1.) BEING aggrieved by the order of acquittal passed on 26th August 1987 in Sessions Case No.56 of 1985, the State of Maharashtra who was original complainant has preferred this appeal. 2.With the assistance of the learned Additional Public Prosecutor and the learned Counsel for the accused. We have scruitinised the record and reappreciated the evidence. In this case the story of the prosecution states briefly is the P.W. 1 was slapped by the accused for urinating in public. P.W. 1 therefore reported this matter to his father Vishnu and others and in the evening it was decided to go and find out whether Vishnu who had gone earlier to verify the assault is detained or not, in front of the shop of one Divate who has examined as D.W. 1. It is alleged by the prosecution that there was altercation in which accused no.1 Baburao fired one gun shot while accused no.2 Atmaram assaulted deceased Vishnu with spear. The matter was accordingly reported to the police who recorded the FIR, conducted the investigation and ultimately prosecuted the accused nos.1 and 2 for the offence under section 302 read with 34 of IPC. 3.The prosecution has examined in all 8 witnesses in support of its story that the accused are guilty of murder of Vishnu, the father of P.W.1. Of these 8 witnesses P.Ws. 4 and 5 have turned hostile, and their evidence is therefore inconsequences. P.Ws. 7 and 8 are police officials who proved the statements recorded by them earlier and who are contradicting the witnesses P.Ws. 1, 2 and 6 who are related to each other and also to the deceased and who claimed to be the eye witnesses.

(2.) THE accused on their part examined one witness Mr. Divate D.W. 1 who is the shop owner in front of whose shop the incident is alleged to have taken place. 4.The learned trial Judge on considering the facts and appreciation of evidence both ocular and documentary, came to the conclusion that the prosecution is not coming out with the complete story. There are inconsistencies in the evidence of the eye witnesses and though homicidal death is proved by Dr. P.W. 3, it becomes unsafe to rely on the evidence of P.Ws. 1, 2 and 6 for convicting the accused under section 302 IPC when the contradictions that were brought out on record by the defence are material in nature. The learned Judge therefore proceeded to acquit the accused persons which acquittal is impugned in this appeal on the ground mentioned in the memo of appeal as also canvassed before us by the learned A.P.P. 5.The position of law in relation to appeal against acquittal is very well settled and unless there are substantial and valid reasons for interfering with the order of acquittal the interference should be avoided particularly in cases, where the view taken by the acquitting Judge is not unreasonable or baseless. Keeping in view the well settled position of law on all angles, by various judgments of the Supreme Court of India, interference in this case would be permissible in law only, if the findings of acquittal as recorded by the learned trial Judge are perverse or unsustainable on the evidence on record. The order of acquittal cannot be interfered with merely because the appellate court takes a different view of the evidence thereof because in that event, the benefit must go to the accused, which is already gone in this case. 6.Keeping in view this position of law and in the evidence in this case is analysed, we find that the order of acquittal cannot be called perverse or unsustainable in law for any reason. There are material contradictions in the statements of eye witnesses P.Ws. 1, 2 and 6. P.W. 2 has lodged FIR but in the FIR entirely different case has made out. In the FIR it is stated that the assault was by spear and gun and gun shots were fired in the air. Whereas in the court room while deposing before the court P.Ws. 1, 2 and 6 have stated that one bullet was fired in the air and another was aimed at the victim.