S.S. Shinde, J.@mdashThis Appeal is filed by the State, challenging the Judgment and Order of acquittal dated 20.01.1996 passed by Additional Sessions Judge, Parbhani in Sessions Case No. 136/1995, thereby acquitting the Respondent Nos. 1 to 3 [Original Accused Nos. 1 to 3] for the offence punishable under Section 302 r/w. 34 of Indian Penal Code, and also acquitting the respondent No. 3 [original accused no. 3] namely Shivaji for the offence punishable under section 177 of I.P. Code.
The case of the prosecution, in brief, is as under:
2. It is the case of the prosecution that, accused Shivaji and accused Devidas had forcibly administered poison to the father of the complainant namely Narayan and as a result of it, Narayan died. Accordingly, offence was registered bearing Crime No. 78/1995 for the offence punishable under Section 302 r/w. 34 of I.P. Code. After investigation, the charge sheet was filed, and after full-fledged trial, the trial Court acquitted the respondents. Hence, this Criminal Appeal filed by the State of Maharashtra.
3. Since this Appeal is filed against the order of acquittal, in order to find out whether the findings recorded by the trial Court are perverse or otherwise, and whether the view taken by the trial Court was possible view, it is necessary to discuss the evidence of two star witnesses of the prosecution namely; Baliram Narayan More, who was examined as PW-2, and Venkati Narayan More examined as PW-3, who lodged the First Information Report. PW-2 stated in his evidence that, deceased Narayan was his father. Complainant Vyankati is his elder brother. There was some dispute about Dhura of field between the family of Narayan, and Devidas and Shivaji on the other side. Even one day before the incident, there was altercations in between Narayan, and Devidas and Shivaji, accused Shivaji was asking to the Narayan that, as to why the boundaries broken by him. As per his evidence, even accused Shivaji had caught the neck of the deceased Narayan and accused persons had abused them.
So far actual incident is concerned, according to this witness, he himself and his father Narayan were proceeding to God Maruti Temple for Darshan. Accused Devidas and Shivaji met them on the way of Maruti Temple for Darshan and expressed their desire to Narayan to settle the dispute of boundary amicably. Accused Devidas and Shivaji had taken deceased Narayan to the house of accused Shivaji, and PW-2 had also gone behind them. According to the evidence of PW-2, accused Shivaji had caught neck of the deceased Narayan in the courtyard of house. He sat on the person of deceased Narayan. There was endrine i.e. insecticide in bottle, in the hand of accused Devidas, and accused Vishnu was also present there. Thereafter, PW-2 went to call his brother Venkati. He narrated incident to his brother, he himself along with his brother went to the spot. Narayan was lying on the spot. Accused Vishnu had caught hold of Venkati, and Shivaji caught hold hands of Narayan and accused Devidas had administered endrine to deceased Narayan. His brother Venkati had shouted loudly and the people had gathered at the spot. Narayan was taken to the Parbhani, and he died there.
4. If the evidence of this witness is carefully perused, when he left spot of incident, accused Shivaji had sat on the person of deceased Narayan. There was a endrine i.e. insecticide in bottle, in the hand of accused Devidas, and accused Vishnu was also present there. If the evidence of PW-3 is perused carefully, in his examination in chief, he stated that, PW-2 told him that, when he himself and father were going for Darshan, accused Shivaji and Devidas had called his father, and they called him for settlement of dispute about boundary, and he had told that, accused Shivaji had caught neck of the father and he fell him down and there was a bottle in the hand of accused Devidas and accused Devidas was administering poison to the father, and thereafter, he had rushed on the spot. At that time, accused Vishnu had caught hold of him. He had seen that, accused Shivaji had sat on the chest of his father and accused Devidas was administering poison to his father. He further stated that, when he shouted nobody had come on the spot. Thereafter, accused Vishnu released him. Then, he had gone to his sister at Kastagaon, which is 1 Kilo meter away from Pimpalgaon, and thereafter, he went to the Padgaon and then to Parbhani. If version of PW-2 and PW-3 is carefully perused, PW-2 when left the spot found that, Devidas is holding a bottle containing endrine i.e. insecticides. He has not stated that, when he left the spot, Devidas was administering endrine to the deceased Narayan. However, PW-3 in his evidence stated that, PW-2 told him that, Shivaji had caught hold neck of the father and he fell him down and there was a bottle in the hands of accused Devidas, and Devidas was administering poison to the father. So far act of Devidas is concerned, there is a material contradiction between the evidence of PW-3 and PW-2 inasmuch as PW-2 when left the spot, he only saw Devidas holding bottle containing endrine i.e. insecticide, in his hand and PW-3 in his evidence stated that, PW-2 told him that, Devidas was administering poison to Narayan. PW-3 in his evidence has stated that, on his shouting, nobody came to the spot. However, in the examination in chief, PW-2 stated that, on shouting people gathered on the spot. Therefore, there is a material contradiction on the aforesaid aspect as well. During the course of cross examination, PW-2 had given admission that, when accused Shivaji had sat on the person of his father, he had not shouted and his father had also not shouted when the neck was caught by the Shivaji. It is surprising to note that, when PW-2 was on the spot for 10 minutes, he did not intervene, either to save his father, or shouted for help. It has come on record that, there are houses nearby the house where the alleged incident had taken place. In the examination in chief, this witness has stated that, when his brother shouted, many people gathered at the spot. However, in his cross examination, he stated that, neither he shouted, nor his brother shouted, and no people gathered on the spot.
5. Therefore, if the evidence of PW-2 and PW-3 is perused carefully, it raises serious doubt in the mind, whether they had really witnessed the incident. The conduct of PW-3 to leave the spot and to go to some other village, and from that village again to Padgaon and then to Parbhani to inform about the incident to the relatives, instead of saving his father at the spot, and also promptly registering the First Information Report, creates serious doubt about assertion of PW-3 that, he had witnessed the incident. If the evidence of PW-3 is believed, in that case, act of administering poison by the Devidas to the Narayan was going on from the time PW-2 left the spot and went to PW-3 and then PW-3 arrived at spot, till that time Devidas was administering endrine i.e. insecticide, to the Narayan, which is improbable. If the evidence of PW-2 and PW-3 is considered in its entirety, reasonable inference can be drawn that, both of them have not witnessed the incident, and therefore, trial Court has rightly disbelieved their evidence by detailed discussion in para no. 9 of the impugned Judgment.
6. In the facts of the present case, the delay in lodging FIR is important since the alleged incident had taken place at 6.00 a.m. and First Information Report was lodged at 10.00 p.m. in the night. Therefore, delay in lodging FIR was fatal to the prosecution case inasmuch as PW-2 and PW-3, who are the real son of the deceased Narayan claimed that, they themselves witnessed the evidence, and therefore, there was no reason for not lodging the FIR promptly.
7. Upon careful perusal of the material placed on record, the prosecution has not established that, the accused persons administered poison forcibly to the deceased Narayan, and as a result, he died. The defence taken by the accused appears to be probable. It is evident from the evidence of Bhagwan Vishwanath Ugale, who was attached to Rural Police Station, Parbhani at the relevant time, that on 15.06.1995 at about 9.30 a.m., he had received the report at Exh.14 from PW-8 API Syed Azim. After receipt of the report at Exh.14, he along with two constables and accused No. 3 Shivaji had gone in auto rickshaw to Syed Miya at Pimpalgaon, and he had seen that, deceased Narayan was lying unconscious in the courtyard of accused no. 3 Shivaji, and even Shivaji accompanied them to take Narayan in the Hospital. Therefore, conduct of the accused Shivaji at the relevant time had also taken into consideration by the trial Court while appreciating the defence taken by the accused persons. Upon careful perusal of the findings recorded by the trial Court, it appears that, those are in consonance with the evidence brought on record and the view taken by the trial Court is possible view.
8. The Supreme Court in the case of Nepal Singh V/s State of Haryana, in Criminal Appeal No. 383 of 2002 decided on 24.04.2009, held that, in case of acquittal, there is a double presumption in favour of the accused-firstly, the presumption of innocence is available to him-secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened.
Yet in another judgment in the case of
"13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere."
Yet in another judgment in the case of Muralidhar alias Gidda and another Vs. State of Karnataka 2014 [4] Mh.L.J.[Cri.] 353 the Supreme Court in para 12 held thus:-
12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in
[Underlines supplied]
9. The view taken by the trial Court is plausible, therefore, no interference is called for in the impugned Judgment and Order, and hence Appeal stands dismissed.
