STATE OF MAHARASHTRA Vs. SANJAY

JUDGEMENT

(1.) This is an appeal preferred by the State against the judgment and order of acquittal dated 31.1.2002 passed by the learned Additional Sessions Judge, Hingoli in Sessions Case No.16 of 2001. The Division Bench of this Court (Coram : T V Nalawade & A.M. Dhavale, JJ.) has heard this appeal, however, they are divided in opinion. Consequently, in terms of the provisions of section 392 of the Code Criminal Procedure read with Rule 7 Chapter I of the Bombay High Court Appellate Side Rules, 1960, this appeal has been laid before this Court under the orders of the Honourable the Chief Justice.

(2.) A brief fact of the prosecution case are as follows:-

(3.) Learned APP for the appellant submits that, evidence of the eye witnesses cannot be discarded merely on the ground that they are the interested witnesses. There are four eye witnesses including the informant, however, the learned Judge of the trial court has discarded their evidence on minor inconsistencies and discrepancies. Learned APP submits that evidence of PW 9 Shaikh Amjad, PW 11 Shaikh Sadik Shaikh Sattar, PW 14 Shaikh Ahemad Shaikh Daud, and PW 15 Shaikh Karim Shaikh Khaja is consistent, reliable and trustworthy duly corroborated by the medical evidence. The eye witnesses testimony is clear and convincing. There was no reason for the eye witnesses to falsely implicate the accused persons in the serious crime like murder. Learned APP submits that, it is not necessary that all eye witnesses should specifically depose about the presence of each others, when in the facts of the case they had witnessed the actual incident from different directions and places. Learned APP submits that evidence of the eye witnesses has a ring of truth, it is cogent, credible, trust worthy, however, the learned Additional Sessions Judge has discarded their evidence in its entirety. It is well settled that where eye witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. The learned APP submits that, even the testimony of PW 9 Shaikh Amjad is sufficient to convict the accused for the offence punishable under section 302 read with section 34 of IPC. One credible witness outweighs the testimony of number of other witnesses of indefinite character. Learned APP submits that, doctrine of falsus in uno falsus in omnibus has no application and it has not received a general acceptance. It is merely a rule of caution. It is the duty of the court to separate grain from the chaff where chaff can be separated from grain, it would be open for the court to convict the accused notwithstanding the fact that the evidence has been found to be deficient or to be not wholly credible. The learned APP submits that the judgment and order of acquittal passed by the trial court thus needs to be quashed and set aside and the accused before the Court are liable to be convicted for the offence punishable under section 302 read with section 34 of Indian Penal Code.