RAJU AMBADAS GANGEKAR versus THE STATE OF MAHARASHTRA on 24 January 2019

[2019] 3 S.C.R. 1

RAJU AMBADAS GANGEKAR

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 1961 of 2009)

JANUARY 24, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

HEMANT GUPTA, JJ.]

Penal Code, 1860 – s.304, Part II – Murder – Reversal ofacquittal – Jurisdiction of Appellate Court – Pursuant to a quarrel,deceased and his colleague were allegedly chased by the accused– Appellant assaulted the deceased with a ‘gupti’ – PW-13, PoliceConstable was on patrolling duty in the area and was alleged tohave seen the appellant assault the deceased with a gupti – Trialcourt acquitted the accused – High Court, while confirming theacquittal of three of the accused, convicted the appellant u/s.304Part II, IPC– On appeal held: On the basis of the evidence, there isno doubt in regard to the identity of the appellant as the assailant –Dying declaration has a ring of truth – Deceased specificallydeposed to the clothes worn by the assailant – PW-13, who witnessedthe incident, corroborated the nature of the apparel worn by theaccused/assailant – Clothes recovered from the appellant at the timeof his arrest within a few hours of the incident, matched thatdescription – Stains found on the clothes, matched the blood groupof the deceased – Identity of the appellant established beyondreasonable doubt – Medical evidence in regard to the nature of theinjuries is entirely consistent with the ocular evidence – Appellatecourt is justified in reversing an order of acquittal where the orderof acquittal suffers from perversity and has resulted in a miscarriageof justice – High Court has furnished cogent reasons for coming tothe conclusion that the charge against the appellant was establishedbeyond reasonable doubt – Trial court proceeded purely on thebasis of surmises when it observed that it was unlikely that PW-13had witnessed the incident – Trial court fell into grievous errorwhich was justifiably corrected by the impugned judgment of theHigh Court.

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ADismissing the appeal, the Court

HELD: 1.1 There is no doubt, on the basis of the evidencewhich has emerged, in regard to the identity of the appellant asthe assailant. The dying declaration Exh. 21 has a ring of truth.The deceased specifically deposed to the clothes which were wornBby the assailant. PW-13, the beat constable who had witnessedthe incident, corroborated the nature of the apparel worn by theaccused/assailant. The clothes which were recovered from theappellant at the time of his arrest within a few hours of the incident,matched that description. Added to this, is the fact that the bloodgroup on the stains which were found on the clothes, matchedCthe blood group of the deceased. The identity of the appellanthas been established beyond reasonable doubt. Undoubtedly, twoof the witnesses i.e. PW-3 and PW-9 as well as two panch witnesseshad turned hostile. However, there is no reasonable basis for thetrial court to have disregarded and rejected the evidence of PW-D13, the beat constable, who was on duty. The presence of PW-13at the spot where the incident took place was in the natural courseof things. Nothing has been elicited in the course of his cross-examination to cast a doubt on his statement that he was assignedto duty at the place where the incident took place. Similarly, the

mere fact that the panch witnesses in support of the discoveryEhad turned hostile is no reason to discredit the case of theprosecution. The medical evidence in regard to the nature ofthe injuries is entirely consistent with the ocular evidence. [Paras21, 22][11-B-F]1.2 The High Court on the basis of the evidence on theFrecord came to the conclusion that since the incident had beenpreceded by a quarrel, the case would not attract the provisionsof Section 302. It is in this view of the matter, that the HighCourt has convicted the appellant under Section 304 Part II andsentenced him to imprisonment for a period of five years. TheGappellate court is justified in reversing an order of acquittal wherethe order of acquittal suffers from a perversity and has resultedin a miscarriage of justice. The High Court has furnished cogentreasons for coming to the conclusion that the charge against theappellant was established beyond reasonable doubt. The trial court H

has proceeded purely on the basis of surmises when it observedthat it was unlikely that PW-13 had witnessed the incident. Infailing to refer to crucial parts of the evidence, the trial court hadfallen into a grievous error which was justifiably corrected by theimpugned judgment of the High Court. The judgment of the trialcourt suffered from a clear perversity and had resulted in amiscarriage of justice. [Paras 23, 24][11-G-H; 12-A-C]

K Gopal Reddy v. State of Andhra Pradesh(1979) 1SCC 365 : [1979] 2 SCR 265; Chandrappa v. State ofKarnataka(2007) 4 SCC 415 : [2007] 2 SCR 630 –relied on.

Mookiah v. State, Rep. by Inspector of Police, TamilNadu(2013) 2 SCC 89 :[2013] 2 SCR 881; Murugesanv. State, through Inspector of Police(2012) 10 SCC383 : [2012] 13 SCR 1; Prem Singh v. State of Haryana(2013) 14 SCC 88 : [2013] 10 SCR 51 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1961 of 2009.

From the Judgment and Order dated 18.03.2006 of the High Courtof Judicature of Bombay, Bench at Aurangabad in Criminal Appeal No.584 of 1989

Sushil Karanjkar, K. N. Rai , Advs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. forthe Respondent.

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AThe Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J. 1. This appealarises from a judgment of the Division Bench of the Bombay High Courtdated 18 March 2006. The State of Maharashtra was in appeal beforethe High Court, assailing the judgment and order of the Additional SessionsBJudge, Ahmednagar dated 10 July 1989. The Additional Sessions Judgeacquitted all the four accused, including the appellant, who were triedfor offences under Sections 302 and 325 read with Section 34 of theIndia Penal Code[1] and Sections 37 and 135 of the Bombay Police Act1951.

C2. The High Court, while confirming the acquittal of three of theaccused, reversed the judgment of the Trial court insofar as the appellantis concerned and found him guilty of the offence under Section 304 PartII of the Penal Code. The appellant was sentenced to suffer rigorousimprisonment for five years and pay a fine of INR 2,000/- D3. Captain Vinod Rawat (deceased) was a Captain in the IndianArmy. On 10 July 1988, he and his colleague Lieutenant Mellvin Desouzavisited New Jagdamba Hotel situated at M.G. Road, Ahmednagar. Thehotel was managed by original accused No. 4. The prosecution allegedthat a quarrel took place at the hotel between the accused and the twovisitors. It is alleged that chilly powder was thrown by the accused intoEthe eyes of the two customers, upon which the deceased and his colleagueran out of the hotel. The case of the prosecution is that they werechased and were assaulted. Police Constable Divakar Shinde (PW-13)was on patrolling duty in the area. He is alleged to have seen the appellantassault the deceased with a gupti. As a consequence of the assault,the deceased fell on the road. PW-13 took him in a rickshaw to theFPolice Station, Ahmednagar after which he was removed to the Civilhospital.

4. At the Civil hospital, the statement of the deceased was recordedby the Special Executive Magistrate, Vishnu Narang (Exh. 21). TheGstatement was recorded at midnight. On the basis of this statement, anoffence was registered under Sections 326 and 307 read with Section34 of the Penal Code.

5. The appellant was arrested at 2.10 a.m. on 11 July 1988.According to the prosecution, upon his arrest, a seizure was effected H 1 Penal Code from the appellant of blood stained clothes, namely a vest and a lungi.The prosecution has also alleged that, based on the information providedby the appellant, a blood stained gupti was seized from him. The clotheswhich were seized from the appellant were sent for chemical analysis.The prosecution alleged that the blood group on the clothes recoveredmatched the blood group of the deceased. The victim died on 23 July1988 after which the investigation proceeded into an offence underSection 302 of the Penal Code. During the course of the trial, 14 witnesseswere examined.

6. The Trial court acquitted the accused by its judgment dated 10July 1989. Insofar as the appellant is concerned, the judgment has beenreversed by the High Court.

7. Mr Sushil Karanjkar, learned counsel appearing on behalf ofthe appellant submitted that having regard to the settled principle of lawwhich emerges from several decisions of this Court, among them beingthe judgment in Mookiah v State, Rep. by Inspector of Police, TamilNadu[2](“Mookiah”), the High Court was not justified in reversing thejudgment of acquittal.

8. Learned counsel submitted that the trial court, noting thediscrepancies in the investigation, adduced valid reasons for the order ofacquittal. If such a view was possible, the High Court ought not to haveinterfered. Among the circumstances which are pressed by the learnedcounsel for the appellant are the following:-

(i) Though the incident took place on the night of 10 July 1988 andthe death of the victim occurred on 23 July 1988, no effort wasmade by the investigating officer to produce the accused beforethe victim for the purposes of identification;

(ii) The evidence of PW-13 indicates that the identity of theappellant has not been established. PW-13, in the course of hisdeposition, indicated that he followed the accused and the victimfrom behind and had not actually seen the face of the assailant;

(iii) In the absence of the identification of the assailant by PW-13who was the beat constable on duty, the failure of theprosecution to conduct a Test Identification Parade assumessignificance; 2 (2013) 2 SCC 89

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A(iv) Two independent witnesses, PW-3 and PW-9 turned hostile;

(v) The Panch witnesses, who were relied upon by the prosecutionin support of the seizure, also turned hostile;

(vi) The accompanying beat constable, Ram Deshmukh was notexamined by the prosecution; andB

(vii) The colleague of the victim, Lt. Melvin Desouza, who hadaccompanied him on the night of the incident, was not examinedby the prosecution.

Learned counsel submitted that at the highest, the recovery of theCblood stained clothes is one circumstance which may be taken intoconsideration, but that in itself is not sufficient to sustain a reversal ofthe judgment of the trial court by which the appellant was acquitted.

9. On the other hand, Mr Nishant R, learned Standing Counselappearing on behalf of the State submitted that the appreciation of theDevidence by the trial court was evidently perverse and the High Courthas justifiably interfered with the acquittal in order to ensure that there isno miscarriage of justice. Learned counsel submitted that this is a casewhere an army-man was put to death. Among the circumstances, learnedcounsel has relied upon the following:

(i) The evidence of the beat constable on duty (PW-13);E

(ii) The dying declaration (Ex. 21); and

(iii) The evidence of the investigating officer (PW-14).

10. These submissions fall for our consideration.

F11. The principles that guide the exercise of appellate jurisdictionin reversing an order of acquittal may be briefly adverted to. In K GopalReddy v State of Andhra Pradesh,[3] the accused was charged underSection 302 of the Penal Code. The Additional Sessions Judge acquittedthe accused. The order of acquittal was reversed by the High Court andthe accused was sentenced to imprisonment for life. A two judge BenchGof this Court affirmed that the High Court, adopting a cautious approach,may review the evidence on record to come to its own conclusion. Itwas held that the benefit of doubt claimed by the accused must also bereasonable. This Court held thus:

“9. …After Sanwat Singh v State of Rajasthan, this Court hasconsistently recognised the right of the appellate court to reviewthe entire evidence and to come to its own conclusion bearing inmind the considerations mentioned by the Privy Council in SheoSwamp case. Occasionally phrases like “manifestly illegal”,“grossly unjust”, have been used to describe the orders of acquittalwhich warrant interference. But, such expressions have been usedmore as flourishes of language, to emphasise the reluctance ofthe appellate court to interfere with an order of acquittal than tocurtail the power of the appellate court to review the entireevidence and to come to its own conclusion. …If two reasonablyprobable and evenly balanced views of the evidence arepossible, one must necessarily concede the existence of areasonable doubt. But, fanciful and remote possibilitiesmust be left out of account. To entitle an accused person tothe benefit of a doubt arising from the possibility of a dualityof views, the possible view in favour of the accused mustbe as nearly reasonably probable as that against him. If thepreponderance of probability is all one way, a bare possibilityof another view will not entitle the accused to claim thebenefit of any doubt. It is, therefore, essential that any viewof the evidence in favour of the accused must be reasonableeven as any doubt, the benefit of which an accused personmay claim, must be reasonable.” (Emphasis supplied)

In Chandrappa v State of Karnataka[4](“Chandrappa”), theAdditional Sessions Judge held that the prosecution had failed to proveits case beyond a reasonable doubt and acquitted the accused of chargesunder Sections 143, 147, 148, 302 and 324 read with Section 149 of thePenal Code. The High Court reversed the order of acquittal and convictedthe accused. It was argued in appeal before this Court that unless thefindings of the trial court are non-existent, extraneous, perverse, acquittalpalpably wrong, totally ill-founded or wholly misconceived, an appellatecourt ought not to interfere. A two judge Bench of this Court reviewedextensively the law on the power of the appellate court in reversing afinding of acquittal and laid down guiding principles in the following terms:

“42. From the above decisions, in our considered view, the followinggeneral principles regardingpowers of the appellate court whiledealing with an appeal against an order of acquittal emerge:

4 (2007) 4 SCC 415

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SUPREME COURT REPORTS

(1) An appellate court has full power to review, reappreciate andreconsider the evidence upon which the order of acquittal isfounded; A

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and an appellateBcourt on the evidence before it may reach its own conclusion,both on questions of fact and of law;

(3) Various expressions, such as, “substantial and compellingreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”, etc.are not intended to curtail extensive powers of an appellate courtin an appeal against acquittal. Such phraseologies are more in thenature of “flourishes of language” to emphasise the reluctance ofan appellate court to interfere with acquittal than to curtail thepower of the court to review the evidence and to come to its ownconclusion; C

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(4) An appellate court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of theaccused. Firstly, the presumption of innocence is available to himunder the fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby a competent court of law. Secondly, the accused having securedhis acquittal, the presumption of his innocence is further reinforced,reaffirmed and strengthened by the trial court; and E

(5) If two reasonable conclusions are possible on the basis of theevidence on record, the appellate court should not disturb the findingFof acquittal recorded by the trial court.”

The principles laid down in Chandrappa (supra) have beenaffirmed by this Court in Murugesan v State, through Inspector ofPolice[5] and Prem Singh v State of Haryana[6].

12. In assessing whether the High Court was justified in interferingGwith the judgment of acquittal, it is primarily necessary for this Court toconsider the material evidence on the record.

5 (2012) 10 SCC 383 6 (2013) 14 SCC 88H

13. The crucial evidence in the present case is that of PW-13,Divakar Shashikant Shinde, who was the beat constable and was onduty together with his colleague Ram Deshmukh on 10 July 1988.PW-13stated in the course of his deposition that at about 11.30 p.m he waspresent near the place where the altercation took place. He saw acrowd gathered near Jagdamba Hotel and asked his colleague to wait ata fixed point. PW-13 proceeded to Jagdamba Hotel where the crowdhad collected. He witnessed the victim having escaped from the crowdand having run away from the scene. PW-13 deposed that he had seenthe accused assaulting the victim. The appellant was seen to have chasedthe victim. PW-13 stated that the appellant was wearing a black colour‘sando baniyan’ and lungi. The appellant accosted the victim near NewWest India Watch Co. where he was assaulted with a weapon in thenature of a knife on the left side of his body. The appellant thereafterran away. PW-13 removed the victim initially to the City Police Stationin a rickshaw, after which he was taken to the Civil hospital. PW-3 wasa beat constable on duty and is an eye-witness to the incident.

14. Emphasis has been laid by the learned counsel appearing onbehalf of the appellant on the statement elicited during the cross-examination of PW-13 that he did not know the appellant previously andhad no occasion to see him prior to the incident. PW-13 stated that hehad seen the appellant running behind the victim but, at that stage, hadnot seen his face. In assessing this aspect, it is necessary that the Courtmust have the totality of the evidence in mind.

15. After the incident took place at about 11.30 p.m, the victimwas moved to the hospital and his dying declaration (Exh. 21) wasrecorded at the Civil hospital at about 12.30 a.m. In his dying declaration,the victim stated that when he was standing on the road near theestablishment of Jagdamba Beer Bar, a person had come from the roadin his direction and threw chilly powder in his eyes. The victim statedthat he had been assaulted with a knife in the stomach and the assailantwas wearing a black coloured sando banian on his body and a printedlungi. The dying declaration has been believed by the High Court. PW-7,Dr. Ravindra Sonar examined the victim at the hospital and certified thathe was in a fit condition to give a statement.

16. The evidence of the Special Executive Magistrate, PW-1,Vishnu Narang who recorded the statement has also been evaluated bythe High Court. The Special Executive Magistrate had, on a request ABC

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Afrom the police station, visited the hospital to record the dying declaration.It is in this background that the High Court placed reliance on the recoverywhich was made of the blood stained clothes. The blood stained clothesconsisted of a black coloured sando banian and the lungi. The recoverywas made from the appellant when he was arrested within a few hoursafter the incident. The Report of the Chemical Analyser found that theBblood group on the blood stained clothes of the appellant matched theblood group of the deceased.

17. In this background, it is necessary to advert to the evidence ofthe investigating officer PW-14, Dattatraya Ramchandra Shejal. PW-14deposed about the sequence of events leading to the report being madeCto him by the head constable and by the PSO when the victim wasbrought in an injured condition in a rickshaw to the police station. PW-14 deposed that he, together with his subordinate staff, immediately visitedthe spot where the incident had taken place. He thereafter arrested theappellant at about 12.30 a.m. and attached from his person, one blackDcolour banian and one lungi cloth containing blood stains under apanchnama. On 11 July 1988, in close proximity to the incident, he recordedthe statement of police constable Divakar Shinde, who deposed at thetrial as PW-13. The other accused was also arrested at about 3 a.m. on11 July 1988. The appellant was sent to the Civil hospital for treatmentand examination as he had injuries on his leg and ankle.E

18. PW-14 deposed in the course of his evidence that during thecourse of the night between 10 – 11 July 1988, Capt. Rawat was removedby the military authorities to the Military Hospital Ahmadnagar. On thenext day, when PW-14 went to the Military Hospital, Capt. Rawat wasnot in a condition to give a statement. PW-14 has deposed to the seizureFboth of the blood stained clothes as well as the gupti at the behest of theappellant.

19. Though some emphasis was placed on the fact that theprosecution did not examine Lt. Melvin Desouza who was accompanyingthe deceased on the night of the incident, the High Court has, as we find,Gobserved that this witness could not be produced before the court sincehe was unavailable due to the exigencies of his military service. TheHigh Court has noted that the prosecution did not deliberately suppressthe witness from the court nor was it an attempt to prevent the truthfrom emerging.

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20. As regards the non-examination of the accompanying beatconstable, we may note that PW-13, in the course of his examination,had stated that upon hearing the commotion, he had directed theaccompanying constable to wait for him at a fixed point. Thereafter,PW-13 proceeded to the spot where the incident had taken place.

21. There is no doubt, on the basis of the evidence which hasemerged, in regard to the identity of the appellant as the assailant. Thedying declaration Exh. 21 has a ring of truth. The deceased specificallydeposed to the clothes which were worn by the assailant. PW-13, whohad witnessed the incident, corroborated the nature of the apparel wornby the accused/assailant. The clothes which were recovered from theappellant at the time of his arrest within a few hours of the incident,matched that description. Added to this, is the fact that the blood groupon the stains which were found on the clothes, matched the blood groupof the deceased. The identity of the appellant has been established beyondreasonable doubt.

22. Undoubtedly, two of the witnesses i.e. PW-3 and PW-9 aswell as two panch witnesses had turned hostile. However, we find noreasonable basis for the trial court to have disregarded and rejected theevidence of PW-13, the beat constable, who was on duty. The presenceof PW-13 at the spot where the incident took place was in the naturalcourse of things. Nothing has been elicited in the course of his cross-examination to cast a doubt on his statement that he was assigned toduty at the place where the incident took place. Similarly, the mere factthat the panch witnesses in support of the discovery had turned hostile isno reason to discredit the case of the prosecution. We have alreadyadverted to the testimony of the investigating officer, PW-14. The medicalevidence in regard to the nature of the injuries is entirely consistent withthe ocular evidence.

23. The High Court on the basis of the evidence on the recordcame to the conclusion that since the incident had been preceded by aquarrel, the case would not attract the provisions of Section 302. It is inthis view of the matter, that the High Court has convicted the appellantunder Section 304 Part II and sentenced him to imprisonment for a periodof five years. Far from assisting the case of the appellant, the decisionof this Court in Mookiah (supra) affirmed the principles laid down inChandrappa (supra). The appellate court is justified in reversing an A

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Aorder of acquittal where the order of acquittal suffers from a perversityand has resulted in a miscarriage of justice.

24. On a careful perusal of both the judgments of the trial courtand the High Court, we find that the High Court has furnished cogentreasons for coming to the conclusion that the charge against the appellantBwas established beyond reasonable doubt. The trial court has proceededpurely on the basis of surmises when it observed that it was unlikely thatPW-13 had witnessed the incident. In failing to refer to crucial parts ofthe evidence, the trial court had fallen into a grievous error which wasjustifiably corrected by the impugned judgment of the High Court. Thejudgment of the trial court suffered from a clear perversity and hadCresulted in a miscarriage of justice.

25. For the above reasons, we find no merit in this appeal. Theappeal shall, accordingly, stand dismissed.

26. Since the appellant has been released on bail during theDpendency of these proceedings, we order that the bail bonds shall standcancelled and the appellant shall forthwith surrender to undergo thesentence. A copy of this judgment shall be forwarded to the Chief JudicialMagistrate concerned to secure compliance.

EDivya Pandey

Appeal dismissed.

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