Vishnu Sahai, J.
1. By means of this appeal, preferred under section 378(1) Cr.P.C. the State of Maharashtra (appellant) seeks to impugn the judgment and order dated 13-8-1982, passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 120 of 1981, acquitting the respondent for offences under section 302 I.P.C. and 323 I.P.C.; the latter on two separate counts, one for causing injuries to Parvati Govindraj, P.W. 4 and the other for inflicting injuries on Kanamma Aarumugam, P.W. 7.
2. Briefly stated the prosecution case runs as under :---
The informant Parvati Govindraj P.W. 4, is the wife of the deceased Govindraj. Kanamma Aarumugam P.W. 7, is the mother of Parvati. Tangamani Katmuttu P.W. 6 being the real brother of the deceased Govindraj, is the brother-in-law of Parvati. Parvati, Kanamma and Tangamani along with the deceased Govindraj lived in a hut in front of B.M.C. (Bombay Municipal Corporation) Building No. 20, Opposite Post Office, Sion Koliwada, Bombay. The respondent who was alleged to be running a matka den and conducting business of selling illicit liquor was said to be living a couple of huts away from Parvati's hut.
From the evidence, it appears that the respondent was considered to be a goonda and a hot headed person by the residents of the locality.
On 19-1-1981, at about 10.30 p.m. Govindraj was sleeping inside his hut. At that time, Parvati and Kanamma were sitting on a cot and were talking. The respondent came in front of their hut and started abusing Parvati and Kanamma. Naturally, Parvati asked the respondent as to why he was abusing them. Thereupon, the respondent became angry and entered inside the hut. He gave two fist blows on the nose of Parvati resulting in bleeding from her nose. He also gave a fist blow on the backside of the elbow of Kanamma. Parvati shouted resulting in Govindraj waking up. Govindraj asked the respondent as to why he had assaulted Parvati and Kanamma. Thereupon, the respondent caught hold of Govindraj's shirt and dragged him outside the hut. He took him on the main road which was in front of the hut. At that place, there was electric light. The respondent knocked down Govindraj on the road near the place where there was electric light; took out a knife from his shoe; and inflicted a solitary blow on the right side of the chest of Govindraj with the same. After inflicting the blow, the respondent stood there. Parvati and Kanamma were watching the incident from their hut. They wanted to come to the rescue of Govindraj but the respondent brandished the knife towards them and hence understandably they could not muster the required moral courage to come to the rescue of Govindraj.
Thereafter, the respondent is said to have run away.
After the respondent had left the place of the incident, Parvati along with Kanamma went to the place where Govindraj was lying. At that time, her brother-in-law Tangamani who was returning from the place of his work also happened to reach the said place. The evidence of Tangamani is that a boy called Piriswami (not examined) had informed him about the murder of the deceased.
Tangamani went and fetched a taxi and on the same, he, Parvati and Govindraj went to Sion Hospital. At that time, Govindraj was gasping.
3. At 10.50 p.m. Parvati, Govindraj and Tangamani reached Sion Hospital also known as Lokmanya Tilak Hospital. At the hospital, Dr. Kalyani Mehta P.W. 5 medically examined Govindraj and found him to be dead.
At the Sion Hospital, Police Constable Baban Awagade P.W. 13 who was at the E.P.R. (Emergency Police Register) counter which was situated near the Casualty Ward on the basis of the information given by Parvati, made an entry in the E.P.R. Register at 10.50 p.m.
Constable Awagade after making the entry, telephonically informed Matunga Police Station at 11.45 p.m. The phone call was attended by S.I. Vilas Sanghai P.W. 15. The contents of the E.P.R. entry were conveyed to P.S.I. Sanghai who asked Constable Tukaram Gaikwad P.W. 14 to record them.
4. Immediately after receiving the information contained in the E.P.R. entry, on telephone from Constable Awagade, S.I. Sanghai left for the Sion Hospital. At the Sion Hospital, he contacted Constable Awagade P.W. 13. He found corpse of Govindraj lying near the Casualty Ward. He also noticed Parvati P.W. 4 present there. He took into possession blood stained clothes of the deceased Govindraj namely full sleeve shirt, white banian, underwear and coloured lungi, under a Panchanama Exhibit 31. Thereafter, S.I. Sanghai came with Parvati and Kanamma to Matunga Police Station.
5. The F.I.R. of the incident was lodged by Parvati P.W. 4 the same day at 11.45 p.m. at police station Matunga. The said F.I.R. was registered by S.I. Sanghai. After registering the crime, he reported the matter to P.I. Kamat who was at the police station.
6. Immediately, after lodging of the F.I.R., Parvati and Kanamma came back to their hut and S.I. Sanghai along with Inspector Kamat came there. Along with Parvati, they visited the scene of the incident. They first went to Parvati's hut which was situated in front of B.M.C. Building. They noticed blood on the floor of the hut. Thereafter, along with Parvati they went towards Jaishankar Yadnik Marg which was by the side of the said hut and found blood on the road. They also found blood near Building No. 5. Blood was also found by them on the grass. In the presence of two panchas, including Jagdishlal P.W. 8, blood was collected from all the aforesaid places. Thereafter, panchanama of the scene of the incident was prepared. The evidence is that there was no difficulty in preparing it for there was sufficient electric light.
After concluding the panchanama of the scene of offence, S.I. Sanghai and P.I. Kamat along with police personnel returned to Police Station Matunga and Parvati and Kanamma were sent through a Constable to Sion Hospital for examination of their injuries.
7. The injuries of Parvati and Kanamma were medically examined at 3 a.m. on 20-1-1981, at the Sion Hospital by Dr. Tulsi Agarwal, P.W. 3. On examining Parvati the doctor did not find any external marks of injuries. However, he noticed blood clot in her left nostril. He did not notice any fracture. On examining Kanamma, the doctor found a minor abrasion on her right elbow.
In the opinion of Dr. Agarwal, injuries of both the victims were attributable to fist blows. Dr. Agarwal also opined that both these victims gave the history of assault with fist blows.
8. The post mortem examination of the dead body of Govindraj was conducted on 20-1-1981 between 11.20 a.m. and 12.30 p.m. by Dr. Subhash Gupta, P.W. 11. On the corpse, the doctor found a solitary external ante mortem injury namely a incised stab wound on the left side of the chest in second intercostal space near the sternum of the size 3 x 1 cm. cavity deep. The angles of the injury were acute.
On internal examination, the doctor found under the above injury 2nd intercostal space was perforated and the upper border of the 3rd rib was cut near the stern-costal junction. He also found that medical border of upper lobe of left lung was perforated. The depth of the injury was 14 cms.
In the opinion of the doctor, the deceased died on account of shock and haemorrhage due to stab injury on the chest and the said injury in his opinion, was attributable to a sharp edged weapon and was sufficient in the ordinary course of nature to cause death.
9. The investigation of the case was conducted by S.I. Sanghai P.W. 15 and P.I. Ramakant Samant P.W. 16. After medical examination of the victims, P.S.I. Sanghai that very night, interrogated Kanamma and Tangamani under section 161 Cr.P.C. On 20-1-1981, he handed over the investigation to P.I. Samant.
P.I. Samant along with S.I. Sanghai visited the scene of the incident. He tried to trace the respondent but, did not find him at his residence. On 21-1-1981, P.I. Samant again visited the scene of the incident and made enquiries about the independent eye-witnesses. However, he could find none. On 23-1-1981, at about 4.30 p.m. he arrested the respondent in Manjrekar Market, Sion Koliwada. Then along with respondent, he went to the latter's place. It is alleged that the respondent from a steel cupboard, which was opened by him, in the presence of public panch Allaudin Rehman P.W. 9, took out a blood stained shirt and pant. The said recovery was effected under a panchanama Exhibit 22.
Along with a forwarding letter dated 20-4-1981, P.I. Samant sent some of the recovered articles namely clothes of the deceased (lungi, full shirt, banian, and jangya) clothes of appellant (full pant and full shirt) and scrappings of blood and blood stained earth which had been collected from four different parts from the place of the incident to the chemical analyst. After completing the investigation, on 20-2-1981, P.I. Samant submitted a charge-sheet against the respondent.
10. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the respondent was charged on three counts namely section 302 I.P.C. for murdering Govindraj and two separate counts under section 323 I.P.C.; one for causing injuries to Parvati P.W. 4 and one in respect of causing injuries to Kanamma P.W. 7. In the trial Court, in all the prosecution examined as many as 16 witnesses. It also tendered and proved some documentary evidence. In defence, no witness was examined.
The trial Judge after recording the evidence and hearing the learned Counsel for the parties, came to the conclusion that the prosecution had failed to bring home the guilt of the respondent beyond reasonable doubt and hence, acquitted the respondent vide the impugned judgment.
Feeling aggrieved by the acquittal of the respondent, the State of Maharashtra has come up in appeal before us.
11. We have heard Ms. Jyoti Pawar, Additional Public Prosecutor for the appellant and Mr. Adhik Shirodkar for the respondent, at considerable length. We have also perused the depositions of the witnesses examined by the prosecution; the material exhibits tendered and proved by the prosecution; the statement of the respondent recorded under section 313 Cr.P.C. and the impugned judgment. After giving our anxious consideration to the matter, we are satisfied that the impugned judgment of acquittal warrants no interference and as a logical imperative, this appeal has to be dismissed.
12. At the very outset, we would like to point out that we are seized of the matter in an appeal against acquittal. It is well-settled that unless appreciation of evidence is clearly unreasonable or the impugned order of acquittal is vitiated by some illegality, this Court does not interfere in an appeal against acquittal. It is equally well-settled that if the view of acquittal is a possible view then this Court does not interfere inspite of the fact that it may feel that had it been the trial Court, it may have taken a different view. We are fortified in our view by the decisions of the Apex Court reported in : 1971CriLJ20 , Khedu Mohton v. State of Bihar, and : 1987CriLJ974 , Tota Singh v. State of Punjab. We also feel that in this connection, it would be pertinent to refer to the decision of the Apex Court reported in : 1995CriLJ1456 , State of Punjab v. Ajaib Singh, wherein in para 7, Their Lordships of the Apex Court observed thus :---'We agree that this Court is not precluded or the Court hearing the appeal against acquittal is not prevented from examining and re-appreciating the evidence on record. But the duty of a Court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by acquitting Court exercising appellate jurisdiction was possible view or not. And if the Court comes to conclusion that it was not, it can on reappreciation of evidence reverse the order.'
13. Ms. Pawar, learned Additional Public Prosecutor on behalf of the appellant strenuously urged that the view of acquittal taken by the trial Court was not a possible view. In her contention, it was a wholly erroneous view; in fact a perverse view. She contended that this being so, the impugned order of acquittal cannot stand.
14. Ms. Pawar strenuously urged that there are some clinching circumstances which are a guarantee of the truthfulness of the prosecution case and weightage was not given to them by the learned trial Judge.
She firstly contended that the prosecution case is backed up by the evidence of two injured eye witnesses namely Parvati and her mother Kanamma. She urged that the manner of incident deposed to by these witnesses is proved not only by their injuries but also by circumstances. In this connection, Ms. Pawar urged that evidence of both these eye witnesses is to the effect that on 19-1-1981 at about 10/10.30 p.m. the respondent came to their hut. He abused Parvati who thereupon asked him as to why he was abusing her. On that, he gave fist blows to them. Their evidence further is that blood came out from the nose of Parvati. While being assaulted, Parvati and Kanamma raised cries of 'Bachav Bachav' hearing which Govindraj who was sleeping inside the hut, woke up and asked the respondent as to why he had abused and assaulted them. The respondent thereupon caught collar of the shirt of Govindraj and dragging him, took him outside the hut to the main road which was in front of their hut. A street lamp was burning there. There respondent knocked down Govindraj and inflicted a knife blow on his person. Thereafter, he dragged Govindraj and left him on the grass nearby.
Ms. Pawar strenuously urged that the account given by Parvati and Kanamma is not only corroborated by the nature of the injuries found on their person by Dr. Tulsi Agarwal P.W. 3 (we have reproduced those injuries in para 7 of our judgment) but, also by the circumstance of recovery of blood. In this connection, Ms. Pawar invited our attention to the panchanama of the scene of the incident and the evidence of S.I. Sanghai P.W. 15. In particular, she invited our attention to paras 19 and 20 of the statement of S.I. Sanghai wherein, he stated that on the floor of the hut; on the road of Jai Shankar Yadnik Marg by the side of the hut, on the window of Building No. 5, and on the grass, he found blood and took the scrappings in his possession.
Ms. Pawar urged that finding of blood inside the hut of Parvati and Kanamma shows that they were assaulted therein as blood had come out from the nose of Parvati as deposed to by her. Ms. Pawar further urged that if the first leg of the prosecution story is correct, as it is in her contention on account of the said circumstance, then there is no difficulty in accepting that Parvati and Kanamma must have seen the incident which took place adjacent to their hut. She also urged that the manner and place of the assault pertaining to the deceased is also probablised by their evidence. It is probablised in her contention by two circumstances.
Firstly, recovery of blood at three other places, apart from the hut of Parvati and secondly by the circumstance that on the corpse of the deceased, the autopsy surgeon found a incised stab wound. In Ms. Pawar's contention, the said injury could be caused by a knife blow and she strenuously urged that these eye-witnesses should be believed when they say that the respondent inflicted a knife blow on the person of the deceased.
We appreciate the ingenuity of Ms Pawar in advancing such a contention. This contention is not to be found in the judgment of the trial Court. On the first blush, we were inclined to accept the said contention of Ms Pawar as being fatal to the acquittal of the respondent. However, on a deeper scrutiny, we found otherwise.
15. Repudiating the contention of Ms Pawar regarding recovery of blood and the implications arising therefrom, Mr. Shirodkar Counsel for the respondent strenuously urged that the report of the chemical analyst only shows that the blood found on the grass was human. He urged that the said report does not show that scrappings of blood from the other three places (including the hut) contained human blood. He urged that in the absence of the fact that blood inside the hut and the other two places was human blood, undue importance should not be given by us to the circumstance of recovery of blood from three other places and cautioned us that we were examining the matter in an appeal against acquittal.
In fact, Mr. Shirodkar went to the extent of submitting that before weightage could be given to the circumstance of recovery of blood from the hut, prosecution had not merely to establish that it was human blood but, the sample of blood of Parvati should have been taken and sent to the Chemical Analyst who should have opined that the blood group of the blood recovered from the hut and that of the sample of Parvati's blood was the same. He urged that in the instant case neither sample of the blood of Parvati was taken nor has the blood group of the blood found in the hut been determined. In such a situation he contended that we do not know whose blood was recovered from inside the hut; of human beings or of animals?
We find some merit in Mr. Shirodkar's contention. The Apex Court in the majority judgment delivered by Raghubar Dayal, J., in the case of Raghav Prapanna Tripathi and others v. State of U.P., : [1963]3SCR239 , in para 21 had held that from the mere presence of blood stained earth, it would be far fetched to conclude that earth was stained with human blood. In the said paragraph, his Lordship on this aspect observed thus:-
'In this connection, reference may also be made to circumstances Nos. 9 and 10, relating to the recovery of the blood stained earth from the house. The blood stained earth has not been proved to be stained with human blood. Again, we are of opinion that it would be far-fetched to conclude from the mere presence of blood stained earth that the earth was stained with human blood and that the human blood was of Kamla and Madhusudhan. These circumstances, have therefore, no evidentiary value.'
All this has to be appreciated in the light of the fact that during trial the respondent disputed the place of the incident and there are some other infirmities in the prosecution case to which we will be shortly referring to.
16. Mr. Adhik Shirodkar also contended that we should not be swayed by the injuries of Parvati and Kanama. In his contention, the factum of these witnesses receiving injuries is open to grave doubts and at any rate, he contended that they are not truthful witnesses. In his contention, before evidence of an injured witness can be accepted by a Court, it should be satisfied that he/she is a truthful witness and the account given is in tune with probabilities. The proposition canvassed by Mr. Shirodkar is a sound one and its soundness has been accepted by a Division Bench of the Allahabad High Court in the case reported in 1984 Alj 1316 Vijay Shankar Misra v. State, wherein in para 22, it is observed thus :---
'It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, it is necessary that the injured witness must be held to be a wholly reliable witness. Where in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness, accounts given by him without independent corroboration by material evidence.'
17. Mr. Adhik Shirodkar contended that the manner in which the injuries were caused to Parvati and Kanamma is open to grave doubts. In this connection, he invited our attention to portions of the statement of both these witnesses, recorded under section 161 Cr.P.C. with which, they were confronted during trial. In relation to Parvati. Mr. Shirodkar pointed out that in the trial Court, Parvati stated that she was assaulted by fists by the respondent. He, however, pointed out that in her statement under section 161 Cr.P.C. with which, she was confronted, she had stated that she and her mother were slapped. When she was confronted with the said statement, the only answer she gave was that it was occasioned by the fact that she was not in her proper senses. Kanamma in her statement in the trial Court also stated that she was given fist blows by the respondent. However, when she was confronted with the fact that this was not so stated by her in her statement under section 161 Cr. P.C. she answered that she could give no reason. Kanamma was also confronted with her statement under section 161 Cr.P.C. wherein she did not even mention that the respondent had assaulted Parvati. She also failed to give a satisfactory answer for this infirmity.
Mr. Shirodkar also vehemently contended that the aforesaid dichotomy between the statement of Parvati and Kanamma in the trial Court and their statement under section 161 Cr.P.C. makes it extremely doubtful as to whether they had sustained injuries in the incident and in fact had even seen the incident. In this connection, Mr. Shirodkar also contended that in-as-much as in the statements' of both Parvati and Kanamma recorded under section 161 Cr.P.C.; it was stated that the respondent had assaulted them with fists, the same should have been put to Dr. Tulsi Agarwal, P.W. 3 who had medically examined them. He urged that instead what has been put to Dr. Agarwal is that whether the injuries to them could be caused by fist blows. He urged that this modulation is not innocuous but was occasioned because prosecution realised that their injuries could not be caused by slaps. We cannot accede to Ms Pawar's contention that a bare perusal of the injuries of Parvati and Kanamma shows that they could be caused by slaps. Whether they could or not be caused by slaps was a question which Dr. Agarwal alone could have answered and we cannot superimpose ourselves as experts and hazard an opinion on this contentious aspect of the prosecution case. Again, we find merit in Mr. Shirodkar's statement.
18. Mr. Shirodkar also urged that both the eye-witnesses have stated that after the respondent had assaulted Govindraj with a knife and the latter had fallen down, he dragged him. In this connection, he invited our attention to the post mortem report and the statement of the autopsy surgeon Dr. Subhash Gupta P.W. 11. Their perusal shows that no scratches or dragging marks were found on the person of the deceased. In the contention of Mr. Shirodkar, this creates a grave doubt, both on the presence as well as on the claim of these witnesses of having seen the incident. We also find some merit in this contention.
19. Mr. Shirodkar also urged and rightly in our opinion that the evidence of Parvati that while taking Govindraj in a taxi to Sion Hospital, her clothes and that of Tangamani came to be stained with blood is not convincing. In this connection, he invited our attention to the circumstance that the Investigating Officer did not take into possession the blood stained clothes of the said persons.
20. Mr. Shirodkar also urged that the circumstance that in the Casualty Register of Sion Hospital, where Govindraj was immediately taken by Parvati and Tangamani, there is no mention of the manner in which and the weapon with which injury was caused to Govindraj clinches the issue that Parvati did not see the incident. In this connection, he invited our attention to the evidence of Tangamani P.W. 6, who stated that immediately on reaching the place of the incident, he found his brother Govindraj lying injured and Parvati informed him that it was the respondent who had assaulted him with a knife. He contended that it was both Parvati and Tangamani who took Govindraj on a taxi to the Sion Hospital. He invited our attention to the evidence of Dr. Mehta, P.W. 5, who deposed in para 4, that Govindraj had been brought by Tangamani. He also drew our attention to paras 9 and 10 of the evidence of Dr. Mehta wherein she stated that from the person who brings the victim, they ascertain the manner in which the injuries were caused and the weapon used for causing them. In para 10, Dr. Mehta stated that she was not given proper history of the patient and therefore, did not mention it in the Casualty Register. Mr. Shirodkar contended that had Parvati informed Tangamani that it was the respondent who had assaulted the deceased with a knife, Tangamani would have mentioned it to Dr. Mehta that Govindraj had been assaulted with a knife and she in turn would have mentioned it in the Casualty Register. He contended that the absence of the manner in which and the weapon with which the injury was caused to the deceased in the Casualty Register, is clearly compatible with the hypothesis that Parvati did not actually witness the murder of the deceased Govindraj being committed and the prosecution case that she told Tangamani that the respondent had assaulted Govindraj with a knife is a blatant lie. We find force in his contention.
21. Mr. Shirodkar also urged that the evidence of Tangamani and Parvati which is to the effect that Tangamani had brought a taxi and on the same Govindraj was taken to the Sion Hospital is a tissue of lies. In this connection, he invited our attention to portions of the statement under section 161 Cr.P.C. of Tangamani P.W. 6 and Kanamma P.W. 7, wherein they have stated that police vehicle had come and on the same, Govindraj was taken. When these witnesses were confronted with the said portions of their aforesaid statements, they failed to give any satisfactory answer. Mr. Shirodkar contended that this story of Govindraj being taken to Sion Hospital on a police vehicle, is being sought to be suppressed by the prosecution. In this context, he invited our attention to the evidence of P.W. 15, S.I. Sanghai who stated that a telephone call was made by a boy called Palani (the evidence is he is real brother of Parvati) at the Police Station. In this connection, he invited our attention to para 61 of S.I. Sanghai's statement. Mr. Shirodkar strenuously urged that the taking of Govindraj on a police vehicle to Sion Hospital shows that :---
(a) Govindraj was found injured;
(b) No one witnessed his murder being committed;
(c) Palani who saw him lying injured telephoned the police; and
(d) A police vehicle was sent on that information and on the same Govindraj was taken to Sion Hospital.
He urged that because the evidence of Palani would not have suited the prosecution. It did not examine him and instead gave a false explanation that summons could not be served on him. There may be some truth in this contention also.
22. Mr. Shirodkar next contended that the E.P.R. entry had been fabricated by the prosecution. The said entry as per the statement of P.W. 13 Constable Baban Awagade (contained in paragraph 8) was made by him on the information given to him by Parvati. He urged that this is patently belied by the evidence of Parvati herself who in para 46 of her statement has stated that at the Hospital, neither she nor her brother-in-law Tangamani had any conversation with anyone, excepting the doctor. This obviously means that the E.P.R. entry which is alleged to have been made at the Sion Hospital on the information given by Parvati was not made on the said information. This is not the only infirmity in the E.P.R. entry. There are others. We find that the statement of Constable Awagade who made the said entry was recorded on 28-7-1981 i.e. more than six months after the incident. No satisfactory explanation is forthcoming from the side of the prosecution for this inordinate delay in interrogating Constable Awagade. Neither could there be one. We further find that it was at a very belated stage during the trial, i.e. 3-8-1982, did the prosecution move an application in the trial Court for examining Constable Awagade who made the E.P.R. entry. On the face of the aforesaid facts, Mr. Shirodkar strenuously urged that the irrestible inference is that the said entry was manufactured and fabricated by the prosecution subsequently. Again, we find merit in Mr. Shirodkar's contention.
23. Mr. Shirodkar also contended that the circumstance that no independent witness is coming to support the prosecution case shows that the incident did not take place either at the hut of Parvati or in the manner deposed to by her and Kanamma. He urged that Parvati stated that the incident took place for about 20/25 minutes and that the evidence of the eye-witnesses (Parvati and Kanamma) shows that adjoining the hut of the deceased, there are a large number of huts. There is also a B.M.C. Building. He contended that the evidence of the eye-witnesses is that in a loud tone, the respondent was abusing them. On the face of this evidence, in his contention, some independent witness should have also seen the incident and the circumstance that no independent witness is coming forth in support of the prosecution case also creates grave doubts on the genuineness of the prosecution story. In our view, it is certainly strange as to why no independent witness saw the incident.
24. It also appears that the F.I.R. (Exhibit 15) was not lodged at 11.45 p.m. as is found mentioned in the entry pertaining to the registration of the case but, it was a ante-timed document. We say this because, the prosecution case is that after making the E.P.R. entry, Constable Awagade telephonically informed S.I. Sanghai who, thereafter, came to Sion Hospital, performed the inquest on the dead body of the deceased, then took Parvati and Tangamani to Matunga Police Station and then lodged the F.I.R. The evidence of Constable Awagade, in para 9, is that at 11.45 p.m. he had conveyed the information in respect of the E.P.R. entry to Matunga Police Station. If that was so, then it is impossible to accept the prosecution claim that the F.I.R. was lodged at 11.45 p.m. This knocks out the very bottom of Ms Pawar's contention that the prosecution case is strengthened by the circumstance that the F.I.R. has been lodged very promptly and instead shows that the F.I.R. is an ante-timed document and God alone knows as to when it was lodged.
25. Mr. Shirodkar also contended that Palani, the own brother of Parvati who informed the Matunga Police Station, and Maniyan who was an eye-witness of the incident, were witnesses whose evidence was essential to the unfolding of the narrative and their non-examination should also weigh with us in drawing an adverse inference against the prosecution. He urged that from the side of the prosecution, no proper explanation is forthcoming for the non-examination of these witnesses. He submitted that we should not accept the evidence of Constable Anant Gaonkar, P.W. 10 who had been directed to serve summons on Palani and who had visited his house on 21st/26th/27th July, 1982 2nd, 3rd and 4th August, 1982 but could not find him, because in para 9, this witness has stated that he could not say where the copy of the witness summons meant for Palani was. In Mr. Shirodkar's contention, had the said Constable actually gone to serve summons on Palani, the prosecution should have produced the witness summons.
Mr. Shirodkar also contended that no proper explanation for not producing Maniyan has come on record. In this connection, he invited our attention to para 60 of the evidence of P.I. Sanghai wherein he admitted that he did not record the statement of Maniyan since he could not be traced. In the same para, this witness stated that there is no written record to show the efforts made to trace Maniyan. Mr. Shirodkar urged that perhaps the prosecution was not finding both Palani and Maniyan pliable enough and they were not prepared to depose the tutored account of the incident. Hence, it did not examine them. We find some substance in his contention.
26. Mr. Shirodkar's contention is that when the said infirmities in the prosecution case are examined in the light of the fact that both Parvati and Kanamma being the wife and mother-in-law of the deceased are highly interested witnesses, it is not safe to accept their testimony.
He urged that after all, we were dealing with an appeal against acquittal wherein, we have to see whether the view of acquittal taken by the trial Court was a possible view or not.
27. We may straight away mention that we cannot concur with the trial Judge in his view that since there were some contradictions and omissions in the testimony of both the eye-witnesses, they erode their credibility. In this connection, we are inclined to accept the submission of Ms Pawar to the effect that some omissions in the statements recorded under section 161 Cr.P.C. are bound to be there for they contain a brief account of the incident and the statement in the trial Court on the other hand contain an elaborate account of the incident. In this connection, Ms. Pawar referred to a decision of the Apex Court reported in : 1979CriLJ1027 Matadin and others v. State of U.P., wherein in para 3, Their Lordships observed thus :---
'The learned Sessions Judge had rejected the evidence of the eye-witnesses on wrong, unconvincing and unsound reasons. The Sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statement before the police and on the basis of these omissions dubbed the witnesses as liars. The Sessions Judge did not realise that the statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration but, mere small omissions will not justify a finding by a Court that the witnesses concerned are self-contained liars.'
28. Ms Pawar, Additional Public Prosecutor for the State of Maharashtra urged that the circumstance that on the pant recovered from the steel cupboard which was opened by the respondent, in the presence of public panch Allaudin Rehman P.W. 9 on 23-1-1981, under a panchanama, human blood was found by the Chemical Analyst also goes against the respondent. To give weight to her submission, she invited our attention to para 10 of the decision of the Apex Court reported in : 1991CriLJ2653 Khujji alias Surendra Tiwari v. State of M.P., wherein Their Lordships of the Apex Court have held that the finding of human blood on clothes of accused is material circumstance which goes against him. In view of this decision, cited by Ms Pawar, we outright reject the submission of Mr. Shirodkar that since it has not been established that on the said pant, there was blood of 'O' group, namely blood group of the deceased, this circumstance cannot be taken into consideration against the respondent.
We however, agree with Mr. Shirodkar that the circumstance that the said pant was recovered from the cupboard at the instance of the respondent has not been established beyond reasonable doubt. In this connection, he contended that Allaudin Rehman P.W. 9, public panch, in whose presence the respondent took out the blood stained pant does not say that the said pant was taken out by the respondent from the cupboard which was opened by him. For this, we have to fall back on the recovery panchanama of the pant which, in the contention of Mr. Shirodkar and rightly in our view, is not substantive evidence.
At any rate, even assuming for argument's sake, that this circumstance goes against the respondent, in our view, it by itself is not strong enough to clinch the respondent's participation in the instant case. The main evidence adduced by the prosecution namely of injured eye-witnesses for the reasons mentioned earlier does not inspire any confidence.
29. Ms Pawar also urged that both Parvati and Kanamma are independent witnesses and had no axe to grind against the respondent and therefore, in the absence of any ostensible reason for them to falsely implicate the respondent, we should accept their evidence. We regret that we cannot accede to the said contention of Ms Pawar. In the first instance being the wife and mother-in-law of the respondent, they are not independent witnesses. Even assuming they are the circumstance that a witness is independent is no guarantee of the fact that his/her evidence is credible. Criminal courts do not merely accept the testimony of a witness because he/she is independent. They only accept the testimony of a witness if they find the same to be cogent, truthful, reliable and in consonance with probablities.
For the reasons stated above, this is not the case here. In this connection, we would like to refer to two decisions. Firstly, we would refer to the decision of the Apex Court reported in : 1981CriLJ325 , Shankarlal Gyarisilal Dixit v. State of Maharashtra. In para 33, Chief Justice Chandrachud, as he then was, observed thus :--
'Our judgment will raise a legitimate query. If the appellant was not present in the house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing when faced with brutal crimes, to spin stories out of strong suspicions.'
We would also like to refer to a Division Bench decision of the Orissa High Court reported in 1986, Cri lj 433, Their Lordships of the Orissa High Court observed thus :---
'The evidence of a witness to the occurrence in a criminal case is not to be accepted, merely because the defence has not been able to say as to why the accused has been involved or as to why a witness has come forward to depose against him or because the witness is a disinterested person. Disinterested evidence is not necessarily true and interested evidence is not necessarily false. In a criminal trial, a person accused of commission of an offence is not to answer the question: If not he who?'
30. As said earlier, we are seized of the matter in an appeal against acquittal. What we have to see is whether the view taken by the trial Court was a possible view or not? In our judgment, the view taken by the trial Court was a possible view.
31. Some of the reasons which we have spelt out in this judgment have not been mentioned by the trial Court in the impugned judgment but, all the same when we are called upon as an Appellate Court, to decide the question as to whether the acquittal of the respondent warrants to be reversed, it is within our domain to examine all possible reasons. In fact we should examine as to what other reasons can be pressed into consideration for determining the question whether the acquittal of the respondent was rightly arrived at or not. After all a judgment of acquittal cannot be reversed on petty technicalities.
It should always be borne in mind that this Court only reverses a judgment of acquittal when after the greatest circumspection, it is satisfied that the view of acquittal was not a possible view. For reaching that satisfaction it should meticulously examine the entire evidence and see whether the view of acquittal can be vindicated also by reasons other than those given by the trial Court. And even after doing so, if this Court is satisfied that the view of acquittal was not a possible view, it would certainly interfere with an order of acquittal.
32. This Court is aware that the Code of Criminal Procedure makes no distinction between the powers of an Appellate Court in an appeal against acquittal and appeal against conviction and that the principle of possible view has been culled out in judicial decision bearing in mind considerations such as :---
(a) the presumption of innocence of accused is strengthened and not weakened by the order of acquittal;
(b) the trial Court had the advantage to watch the demeanour of witnesses and also took the same into consideration in passing an order of acquittal;
(c) the general slowness of an Appellate Court to interfere with an order of acquittal; and
(d) the principle that the benefit of all doubt should go to the accused See , Sheoswaroop v. Emperor.
To the said consideration we may add one more. That is the equitable consideration. Today, to put it on the lower side, an appeal against acquittal comes up for hearing ordinarily after a decade and naturally after this long period of time, during which the accused first recovers from the trauma of a trial which more than often is a protracted one, then settles down in his vocation; and in the rhythm of his family life, this Court is loathe to reverse an order of acquittal and send back a person to jail unless the view of acquittal is not a possible view.
There are some of the justifications for the principle of possible view.
33. In our view, there can be no manner of doubt that the acquittal of the respondent has been rightly arrived at. In our judgment, the view of acquittal was not only a possible view but a wholly plausible view.
34. Pursuant to the above discussion, we are satisfied that there is no merit in this appeal and it deserves to be dismissed.
35. In the result, we dismiss this appeal and uphold the acquittal of the respondent on all the counts recorded vide the impugned judgment. The respondent is on bail. He need not surrender. His bail bonds stand cancelled and sureties discharged.
Before parting with this judgment, we would like to put on record our appreciation for the extremely competent and tenacious manner in which this appeal has been argued by Ms Pawar, Additional Public Prosecutor. At one point of time, we had been nearly persuaded by her that the impugned judgment of acquittal warranted to be reversed. That we have not done so, is the result of a deeper reflection of the matter by us and also the tenacious and highly analytical advocacy of Mr. Adhik Shirodkar.
Issuance of certified copy is expedited.