of Maharashtra Vs. Tulshiram Bhanudas Kamble &
Ors  Insc 848 (21
B. Sinha & Markandey Katju
APPEAL NOS.85-87 OF 2000 MARKANDEY KATJU, J.
These appeals have been filed against the impugned judgment dated 5.4.1999 of
the Bombay High Court in Criminal Appeal Nos. 32, 71 and 83 of 1996.
Heard learned counsel for the parties and perused the record.
There were initially fifteen accused in the case which was tried by the
Additional Sessions Judge, Pandharpur, District Sholapur, who were charge-
sheeted under Sections 147, 148, 149, 302, 307, 323, 324, 188 and 452 of the
Indian Penal Code. The trial court convicted accused no.1 Tulshiram Bhanudas Kambale,
accused no.2 Ramchandra Bhanudas Kambale, accused no.5 Ganesh Kisan Shirsat @ Paparkar,
accused no.6 Ashok Sahebrao Waghmare, accused no.8 Dnyaneshwar Shankar Naikwadi,
accused no.10 Anil Dhondiram Mane and accused no.11 Sunil Dhondiram Mane under
Section 302 read with Section 149 of the Indian Penal Code and sentenced them
to life imprisonment. He also convicted accused no.1, accused no.10 and accused
no.14 under Section 324 read with Section 149 of the Indian Penal Code and
sentenced them to two years rigorous imprisonment. He further sentenced accused
no.1, accused no.2, accused no.5 to 11, accused no.14 and 15 under Section 452
read with Section 149 of the Indian Penal Code and sentenced them to three
years rigorous imprisonment. He acquitted accused no.1 to 15 of the offence
punishable under Section 307 read with Section 149 of the Indian Penal Code
hence Section 188 of the Indian Penal Code. He gave the benefit of doubt to
accused nos.7, 9, 14 and 15. He acquitted accused nos.3, 4, 12 and 13 of all
the punishable offences for which they were charged.
State did not file any appeal against the accused who have been acquitted by
the trial court and hence the acquittal of those accused has become final.
However, nine of the accused, being original accused no.1, 2, 6 to 14 being Tulsiram
Bhanudas Kamble, Ramchandra Bhanudas Kamble, Ashok Sahebrao Waghmare, Dagadu Shankar
Naikwadi, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar, Anil Dhondiram
Mane, Sunil Dhondiram Mane and Rajendra Dashrath Kothalkar filed an appeal
before the Bombay High Court. The High Court by the impugned judgment dated
5.4.1999 acquitted five of the appellants being Ramchandra Bhanudas Kamble, Ashok
Sahebrao Waghmare, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar and
Sunil Dhondiram Mane on all counts and ordered them to be released.
High Court also acquitted Tulsiram Bhanudas Kamble and Anil Dhondiram Mane for
the offence under Section 302 read with Section 149 of the Indian Penal Code.
It also acquitted the accused Tulsiram Bhanudas Kamble, Anil Dhondiram Mane and
Rajendra Dashrath Kothalkar for the offence under Section 324 read with 149 of
the Indian Penal Code.
High Court converted the conviction of accused Tulsiram Bhanudas Kamble, Dagadu
Shankar Naikwadi, Anil Dhondiram Mane and Rajendra Dashrath Kothalkar from
Section 452 read with Section 149 of the Indian Penal Code and altered it to
Section 452 read with Section 34 of the Indian Penal Code. It reduced the
sentence to the period already undergone.
Court further set aside the conviction of Ganesh Kisan Shirsat @ Paparkar on
both the counts namely Section 302 read with Section 149 and Section 452 read
with Section 149 of the Indian Penal Code. It further allowed the appeal and
set aside the conviction of Dhanaji Dashrath Kothalkar under Section 452 read
with Section 149 of the Indian Penal Code.
appeal in this Court has been filed by the State of Maharashtra and the following persons have been
made the respondents :
Bhanudas Kamble Govindpura, Tal. Pandharpur, Dist. Solapur.
Bhanudas Kamble Govindpura, Tal. Pandharpur, Dist. Solapur.
Sahebrao Waghmare R/o Vagholi, Tal. Mohol, Dist. Solapur.
Shankar Naikwadi Tal. Mangalwedha, Dist. Solapur.
Shankar Naikwadi Tal. Mangalwedha, Dist. Solapur.
Dashrath Kothalkar R/o Haridas Ves, Tal. Pandharpur, Dist. Solapur.
Anil Dhondiram Mane R/o Govindpura, Tal. Pandharpur, Dist. Solapur.
Sunil Dhondiram Mane R/o Govindpura, Tal. Pandharpur, Dist. Solapur.
Dashrath Kotalkar R/o Kolegalli, Tal. Pandharpur, Dist. Solapur.
Kisan Shirsat Tal. Mohol, Dist. Solapur.
Dashrath Kotalkar R/o Kolegalli, Tal. Pandharpur, Dist. Solapur.
Seven of these respondents before us had been convicted under Section 302 read
with Sections 34 and 149 of the Indian Penal Code. Two of these seven persons
convicted under Section 302 have died and now the remaining accused convicted
by the trial court under Section 302 of the Indian Penal Code are accused no.2 Ramchandra
Bhanudas Kamble, accused no.5 Ganesh Kisan Shrisat @ Paparkar, accused no.6 Ashok
Sahebrao Waghmare, accused no.10 Anil Dhondiram Mane and accused no.11 Sunil Dhondiram
may be noted that the trial court acquitted accused no.3 Walchand Hiralal Shah,
accused no.4 Manikchand @ Babushah Shah, accused no.12 Dalu Jagannath Kambale
and accused no.13 Laxman Kisan Shirsat @ Paparkar on all counts. Since no
appeal was filed by the State Government against these accused hence their
acquittal has become final.
The remaining eleven accused who have been convicted by the trial court, have
filed Criminal Appeals in the High Court. In Criminal Appeal No.32 of 1996
there were nine appellants while in Criminal Appeal Nos.71 of 1996 and 83 of
1996 there were only one appellant in each of these cases.
The High Court acquitted appellants Ramchandra Bhanudas Kamble, Ashok Sahebrao Waghmare,
Dnyaneshwar Shankar Naikwadi, Ganesh Kisan Shrisat @ Paparkar, Dhanaji Dashrath
Kothalkar, Santosh Dashrath Kothalkar and Sunil Dhondiram Mane on all counts.
Thus seven more of the accused were acquitted by the High Court, and the
conviction of those accused convicted under Section 452 read with Section 32
and 149 of the Indian Penal Code was converted into conviction under Section
452 read with Section 34 of the Indian Penal Code.
this appeal we are concerned with those convicted by the trial court under
Section 302 read with other provisions of the Indian Penal Code as well as
those not convicted under Section 302. Out of the seven convicted under Section
302 by the trial court, two have died as already stated above.
we are concerned with the cases of the other accused. We have carefully
considered the evidence on record and the judgments of the High Court and trial
The prosecution case is that the appellants belong to the Koli community and
are inter-related. Between them on the one hand and the informant Rajabhau Kamble
(PW-7), Dattatraya Kamble (PW-8), Bhaskar Bhinge (PW-11), his brother Mahesh Bhinge
(PW-12), Laxman Kamble (the deceased) and Kailas Bhinge (the deceased), there
was long standing enmity of an acute nature. Its details have been furnished in
paragraph 9 of the statement of the informant Rajabhau Kamble.
is alleged that on 19.2.1995 at about 5 p.m. the deceased persons Bhaskar Bhinge and Dattatraya Kamble along with
some others were watching a film on Television inside the house of the deceased
Laxman, in Pandharpur Taluka within the limits of District Sholapur. The
informant Rajabhau Kamble and Pandurang Bhinge also came there. After some time
Panduran Bhinge left. At about 7.30 p.m. the
film got over. Thereafter the deceased persons, Dattatraya Kamble and Rajabhau Kamble
came and sat in the courtyard of Laxman. Bhaskar Bhinge remained inside and was
listening to the news. At that time in the jeep of acquitted accused Laxman Paparkar,
the appellants along with acquitted accused Laxman Paparkar, Walchand Shah, Manikchand
@ Babusha Shah and Balu Kamble came.
were armed with weapons Sattur, axe and sword. They entered inside the
courtyard of Laxman. Appellants Tulsiram Kamble and Dagadu started inflicting
blows with swords on Dattaraya's person. Appellants Rajendra and Anil Mane
assaulted Dattatraya with Sattur. Kailas Binge, the deceased at that time was
sitting by the side of water tank which was in the courtyard.
Ramchandra with an axe, Santosh, Dhananjay alias Dahanaji acquitted accused Laxman,
Walchand and Babusha with swords started assaulting him. Appellant Tulsiram
also is said to have joined them.
Binge (PW-11) in the meantime came out, caught hold of Babusha Shah, and asked
him as to why he was assaulting Kailas, whereupon he inflicted a blow from the
blunt side of sword on his right thigh. Thereafter Babusha Shah and Tulsiram
lifted Bhaskar Binge and took him to the gate of the house and made him stand
there. Appellants Dagadu with sword, Raja alias Rajendra Kothalkar, Anil Mane,
Sunil Mane, Ashok Waghmare and Ganesh Paparkar assaulted the deceased Laxman
with Sattur on various parts of his body like head, face and hand. In the
meantime Bhaskar Bhinge's son Mahesh Bhinge (PW-12) came and Walchand Shah
inflicted a sword blow on this person. After assaulting Laxman, Kailas, Dattatraya,
Bhaskar Bhinge and Mahesh Bhinge, the appellants and the acquittal accused are
alleged to have run away.
This incident was seen by the victim, Rajabhau Kamble and Suresh Sobaji (PW-13)
in electric light. It is said that Kailas Bhinge succumbed to the injuries on
Immediately after the appellants and the acquitted accused persons had run
away, Rajabhau Kamble took Laxman Kamble and Dattatraya Kamble to the Municipal
Dispensary, Pandharpur. Bhaskar Bhinge and Mahesh Bhinge also came there.
The evidence of Dr. Anil Joshi (PW-9) of Municipal Dispensary, Pandharpur shows
that at 7.45 p.m. he examined Laxman Kamble and found him to be dead. At 8
p.m., 8.45p.m. and 9.15 p.m. the same day, Dr. Joshi examined Dattatraya Kamble,
Bhaskar Bhinge and Mahesh Bhinge, respectively.
the person of Dattatraya Kamble, Dr. Joshi found two incised wounds and one
contused lacerated wound. Two of the incised wounds were situated on the head
and the remaining two on fingers of the right hand.
lacerated wound was situated on the middle finger of the right hand. Since the
condition of Dattatraya was precarious, at 8.30 p.m. he was transferred to
Civil Hospital, Sholapur.
the person of Bhaskar Bhinge, Dr. Joshi found a contusion 6 x 4 cm. on right
thigh interior aspect and a transverse abrasion 6 cm. over right thumb.
the person of Mahesh Bhinge, Dr. Joshi found 2 lacerated wounds.
out of them of the dimensions of 2 cm. x 1 cm. was situated on left hand little
finger and the other which was 5 cm. muscle deep was located on the left hand
20.2.1995 Dr. Joshi (PW-9) performed the autopsy on the corpse of Laxman Kamble
and found on the same 16 ante-mortem injuries, their break-up being thus : 15
incised wounds and 1 contused abrasion. Nine of the incised wounds were
situated on the head and face and were accompanied by extensive internal
damage. According to Dr. Joshi the injuries of the deceased were sufficient in
the ordinary course of nature to cause death and five of them namely injuries
no.1, 2, 3, 4 and 12 were fatal in nature.
The evidence of the informant Rajabhau Kamble (PW-7) shows that from Municipal Hospital, Pandharpur the police took him to Pandharpur Town Police
Station where his FIR was lodged at 8.40 p.m., the same day.
recorded by A.P.I. Vithal Jadhav (PW-18), who on its basis registered a case
under Sections 147, 148, 302, 307, 452, 323, 324 and 188 I.P.C. vide C.R. No.23
is pertinent to point out that the same day between 11 p.m. to 11.50 p.m. Sharana
Basappa Tarapore (DW-3) an Executive Magistrate, recorded the statement of Dattaraya
Kamble. The said statement is Exhibit-130 and in it Dattatraya stated that the
same day between 7 to 7.30 p.m. while he was sitting with Kailas Bhinge and Laxman
Kamble, appellant Tulsiram Kamble, Anil Mane, Dagadu Naikwadi, Raja Kothalkar
and two other unknown persons came and started assaulting him. Tulsiram and Dagadu
assaulted him with swords and the other persons with axe. All were shouting
that "he be killed".
may be seen that there are as many as five eye witnesses to the incident namely
PW-7 Rajabhau Kamble (first informant), PW-8 Dattatraya Kamble, PW-11 Bhaskar Bhinge,
PW-12 Mahesh Bhinge and PW-13 Suresh Sobaji. However, there still leaves four
eye witnesses namely PW-7 Rajabhau Kamble (first informant), PW-8 Dattatraya Kamble,
PW-11 Bhaskar Bhinge, PW-12 Mahesh Bhinge. In our opinion there was no good
reason to disbelieve these four eye witnesses. Out of these four, three are
is surprising that while the High Court has found these accused to be guilty
under Section 452 of the Indian Penal Code, it has found them to be not guilty
under Section 302 of the Indian Penal Code. Once the Court has accepted that
the appellants have committed the offence under Section 452 of the Indian Penal
Code it follows that High Court has accepted the prosecution version that the
accused along with others are the aggressors and the incident has happened in
the courtyard of Laxman as alleged by the prosecution. Thus it is accepted by
the High Court that the accused came with deadly weapons to the house of Laxman
and committed criminal trespass in the said house. Thus the High Court has
accepted the place of the incident. We, therefore, find it surprising that the
High Court has held these accused not guilty under Section 302 of the Indian
is evident from the record that these accused came with deadly weapons to the
house of Laxman in a jeep. There is also no dispute that two persons died in
the incident and three of the eye witnesses were injured witnesses, one of them
Dattatraya Kamble having very serious injuries being incised wounds in his head
and contused lacerated wound on his fingers.
therefore, fail to understand how the High Court acquitted the accused under
Section 302 of the Indian Penal Code.
The reasoning given in paragraph 14 of the High Court judgment to discard the
evidence of these four eye witnesses are:
They are inimical to the appellants;
They have falsely implicated Laxman Shirast @ Paparkar; and
They have falsely stated that Suresh Sobaji (PW-13) witnessed the incident.
Each of the reasoning assigned by the High Court, in our opinion, is contrary
to the well-settled legal principle. The witnesses examined on behalf of the
prosecution, apart from being eye-witnesses, were injured witnesses. Their
presence at the place of occurrence, therefore, cannot be doubted. Only because
they were inimical to the respondents, the same by itself cannot be a ground to
discard their evidences. Although in accepting the same, some amount of caution
is required to be maintained.
Ramashish Rai vs. Jagdish Singh [(2005) 10 SCC 498], this Court held:
We are clearly of the view that the findings of the High Court were erroneous,
resulting in grave miscarriage of justice. The eyewitnesses PWs 1, 2, 3, 5, 8
and 10 consistently supported the case of the prosecution throughout. They were
subjected to lengthy cross-examination but nothing could be elicited from their
mouth so as to discard the creditworthiness of their statements. The ocular
evidence of the eyewitnesses was corroborated in material particulars by the
medical evidence. In our view, therefore, the acquittal recorded by the High
Court on the aforesaid reasoning is perverse.
High Court discarded the eyewitness account, branded them as inimical
witnesses. This is not the requirement of law. The requirement of law is that
the testimony of inimical witnesses has to be considered with caution. If
otherwise the witnesses are true and reliable their testimony cannot be thrown
out on the threshold by branding them as inimical witnesses. By now, it is
well- settled principle of law that enmity is a double-edged sword. It can be a
ground for false implication. It also can be a ground for assault. Therefore, a
duty is cast upon the court to examine the testimony of inimical witnesses with
due caution and diligence. In the present case the High Court has rejected the
otherwise creditworthy testimony of eyewitness account merely on the ground
that there was enmity between the prosecution party and the accused
State of U.P. vs. Kishan Chand and others [(2004 7 SCC 629], this Court observed
The submission of the counsel for the accused that the testimony of PWs cannot
be acted upon as they are interested witnesses is to be noted only to be
now, it is well-settled principle of law that animosity is a double-edged
sword. It cuts both sides. It could be a ground for false implication and it
could also be a ground for assault. Just because the witnesses are related to
the deceased would be no ground to discard their testimony, if otherwise their
testimony inspires confidence. In the given facts of the present case, they are
but natural witnesses. We have no reason to disbelieve their testimony.
Similarly, being relatives, it would be their endeavour to see that the real
culprits are punished and normally they would not implicate wrong persons in
the crime, so as to allow the real culprits to escape unpunished."
Baitullah and another vs. State of U.P. [1998) 1 SCC 509], this Court noticed Arjun
vs. State of Rajasthan [(1994) Supp. (3) SCC 189], wherein it was observed :
Learned counsel for the appellants first contended that there was long-standing
enmity between the complainant and some of the witnesses on one hand and the
appellants on the other and some criminal proceedings between them were going
on when the alleged incident took place and hence it was due to this enmity
that the appellants were falsely implicated. It was also submitted that Bahori,
PW1 and Sat Pal Singh, PW7 are also relatives of the deceased and other
prosecution witnesses are also close associates and, therefore, there is
possibility of false implication of the appellants in the crime in question. It
is an admitted fact that the complainant and the appellants were on inimical
terms and some criminal proceedings were ending between them even at the time
when the occurrence took place. It is equally true that Bahori, PW1 is the
brother of the deceased and informant Sat Pal Singh, PW7 is the son of the
deceased. But we are not convinced by the aforesaid arguments that either on
account of animosity or on account of relationship they did not divulge the
truth but fabricated a false case against the appellants. It is needless to
emphasize that enmity is a double-edged sword which can cut both ways. However,
the fact remains that whether the prosecution witnesses are close relatives of
the deceased victim or are on inimical terms with the deceased involved in the
crime of murder, the witnesses are always interested to see that the real
offenders of the crime are booked and they are not, in any case, expected to
leave out the real culprits and rope in the innocent persons simply because of
the enmity. It is, therefore, not a safe rule to reject their testimony merely
on the ground that the complainant and the accused persons were on inimical
terms. Similarly the evidence could not be rejected merely on the basis of
relationship of the witnesses with the deceased. In such a situation it only
puts the Court with the solemn duty to make a deeper probe and scrutinize the
evidence with more than ordinary care which precaution has already been taken
by the two courts below while analyzing and accepting the evidence."
regards enmity, it is well known that enmity is a double edged weapon. It can
be a ground for false implication, but it can also be a ground for correct
regards the second ground for rejecting the evidence of these eye witnesses
given by the High Court, namely that they have falsely implicated Laxman Shirast
@ Paparkar, this too, in our opinion was hardly a good ground of rejecting
their evidence. It is well known that in India the doctrine of falsus in uno falsus
in omnibus (false in one false in all) does not apply.
court can partly reject and partly accept the evidence of a witness, and it is
not correct to say that merely because some part of the evidence is found to be
false the entire evidence has to be rejected. [See Krishna Mochi and others vs.
State of Bihar (2002) 6 SCC 81]. If the Court finds that out of several
co-accused, one or more are falsely implicated, that does not necessarily mean
that everyone was falsely implicated. Similarly, the third ground for rejecting
the testimony of the four eye witnesses, namely that they have falsely stated
that Suresh Sobaji had witnessed the incident, is in our opinion not a good
ground for rejecting the prosecution version in toto.
Thus, in our opinion, the High Court has rejected the evidence of the four eye
witnesses, three of whom were injured, on flimsy grounds.
Learned counsel for the appellant has taken us through the evidence of these
four eye witnesses and we have carefully examined the same. He submitted that Dattatraya
Kamble did not mention the names of many of the accused in his statement before
the Magistrate in the Hospital.
this connection, it may be noted that the incident in question had taken place
at about 5 p.m. and Dattatraya Kamble received deadly injuries on his head with
sharp edged weapon because of which he became unconscious. He has stated in his
evidence before the trial court that he regained consciousness at about 11
p.m., and the statement before the Magistrate was also recorded at about 11
p.m., that is soon after he became conscious. His pulse at that time was 90/50.
Obviously, therefore, he could not be expected to give an accurate version of
the incident when he was unconscious for six hours and he had just regained
consciousness. Hence, even if he has not named some of the accused before the
Magistrate that does not help the case of the accused.
The evidence of all the four eye witnesses are broadly consistent.
have mentioned that the accused came to house of the complainant with arms and
deadly weapons and they attacked the deceased and other persons including the
Though it is true that it is not necessary to invariably accept the version of
the injured witnesses but it is well settled that greater weight has to be
given to the testimony of the injured witnesses. We see no reason to disbelieve
them and we agree with the view taken by the trial court.[See Nain Singh and
another vs. State of U.P. [(1991) 2SCC 432], State of Punjab vs. Gurmit Singh
and others [(1996) 2 SCC 384] and Ramappa Halappa Pujar and others vs. State of
Karnataka [2007(6) SCALE 206]
our opinion, the High Court has not assigned cogent or sufficient reasons for
disagreeing with the findings of the trial court. The judgment of the High
Court, in our opinion, is based on surmises and conjectures. In our opinion
this is not a case where the High Court should have interfered with the
conviction by the trial court under Section 302 of the Indian Penal Code.
by reason of the judgment of the High Court, a great miscarriage of justice has
taken place. It is well settled that when the reasoning of the High Court is
perverse, the Supreme Court can set aside the judgment of the High Court of
acquittal and restore the judgment of conviction and sentence passed by the
trial court, vide State of U.P. vs. Nawab Singh (2005) 9 SCC 84.
The post mortem of Laxman Kamble has shown as many as sixteen ante-mortem
injuries out of which fifteen were incised wounds and one contused abrasion.
The deceased Kailas Bhinge succumbed to his injuries on the spot.
ante-mortem injuries shows that thirteen were incised wounds, many of them on
the head and other vital parts of the body. The injured Dattatraya Kamble has
two incised wounds on his head and the injuries particularly incised wounds
were found on the other witnesses who were injured in the incident.
These facts lead us to the inevitable conclusion that appellants had come with
arms and deadly weapons to the house of the complainant party and with the
common intention and common object to kill the complainant party.
This is a case of great injustice which has been caused by the judgment of the
High Court which has acquitted the accused of the offence under Section 302 of
the Indian Penal Code on flimsy grounds. Such a judgment if upheld will shake
the confidence of the public in the judiciary.
For the reasons given above, the judgment of the High Court is set aside. The
conviction of the five accused who had been convicted by the trial court under
Section 302 IPC being accused No.2 Ramchandra Bhanudas Kamble, accused No.5 Ganesh
Kisan Shirsat @ Paparkar, accused No.6 Ashok Sahebrao Waghmare, accused No.10
Anil Dhondiram Mane and accused No.11 Sunil Dhondiram Mane is restored. These
accused are found guilty under Section 302 of the Indian Penal Code and are
sentenced to life imprisonment.
regards accused No.7 Dagadu Shankar Naikwadi, he had been convicted by the
trial court under Sections 452/149 IPC and sentenced to three years' rigorous
imprisonment. The High Court on appeal observed that he had already undergone
12 months' imprisonment and hence his sentence was reduced to the period
already undergone provided he deposits a fine of Rs. 10,000/- within a period
of six months. In our opinion the High Court erred in reducing the sentence of
accused No. 7 Dagadu Shankar Naikwadi since all the four eyewitnesses viz. Rajabhau
Kamble (PW7), Dattatraya Kamble (PW8), Bhaskar Bhinge (PW11) and Mahesh Bhinge
(PW12) have stated that this accused had also come along with other accused in
a Jeep to the complainant's house and had attacked the persons with deadly
weapons. It may be mentioned that the State Government had not filed any appeal
in the High Court for enhancement of the sentence awarded to accused No. 7 Dagadu
Shankar Naikwadi by the trial court and hence we cannot enhance the sentence.
However, we set aside the sentence awarded by the High Court and restore the
sentence of three years' R.I. awarded to him by the trial court.
regards accused No.9 Santosh Dashrath Kothalkar, he has also been convicted
under Sections 452/149 IPC and sentenced to three years' rigorous imprisonment.
In appeal the High Court acquitted him on all counts. It has come in the
evidence of Rajabhau Kamble ((PW-7), Dattatraya Kamble (PW-8), Bhaskar Bhinge
(PW-11) and Mahesh Bhinge (PW-12) that these accused came along with the other
accused persons and attacked, inter alia, Kailash, the deceased, with a Sattur.
There is no cogent reason to disbelieve these witnesses. Since the State
Government had not filed any appeal before the High Court against the sentence
awarded to accused No. 9 Santosh Dashrath Kothalkar by the trial court, we
cannot enhance this sentence. But we set aside the acquittal of accused No. 9
by the High Court and restore the sentence of three years' R.I. under Sections
452/149 IPC awarded to him by the trial court.
regards accused No.15 Dhanaji Dashrath Kothalkar, he has been found guilty by
the trial court and convicted under Sections 452/149 IPC and sentenced to three
years' rigorous imprisonment, but his conviction was set aside by the High
Court. The accused has been named in the FIR and it has also come in the
evidence of the four witnesses mentioned above that he was also in the group of
people who came in the Jeep and attacked the complainant party with a deadly
weapon. According to Rajabahu Kamble (PW-7), this accused had Sattur in his
hand by which he attacked the deceased. The State Government did not file any
appeal before the High Court against accused No. 14 Rajendra Dashrath Kothalkar
for enhancement of the sentence awarded to him by the trial court. Hence we
cannot enhance that sentence. However, we set aside the sentence awarded by the
High Court and restore the sentence of three years' R.I. awarded to him by the
For the same reason as mentioned above, we restore the sentence of three years'
R.I. awarded to accused No. 15 Dhanaji Dashrath Kothalkar by the trial court
and set aside the lesser sentence awarded to him by the High Court.
are not oblivious of the limited jurisdiction of this Court in interfering with
the judgment of acquittal. The scope of an appeal against acquittal is limited.
It is trite that only when two views are possible, this Court cannot interfere
with a judgment of acquittal; but that would not mean that despite existence of
substantial and compelling reasons, the Court will refuse to interfere in a
case where it would be just and proper to do so.
Chandrappa and others vs. State of Karnataka [2007(3) SCALE 90], a Division
Bench of this Court upon considering a large number of cases, opined:
the above decisions, in our considered view, the following general principles
regarding powers of appellate Court while dealing with an appeal against an
order of acquittal emerge;
appellate Court has full power to review, re- appreciate and reconsider the
evidence upon which the order of acquittal is founded;
The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate Court on the evidence
before it may reach its own conclusion, both on questions of fact and of law;
Various expressions, such as, 'substantial and compelling reasons', 'good and
sufficient grounds', 'very strong circumstances', 'distorted conclusions',
'glaring mistakes', etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal.
phraseologies are more in the nature of 'flourishes of language' to emphasize
the reluctance of an appellate Court to interfere with acquittal than to
curtail the power of the Court to review the evidence and to come to its own
appellate Court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of
innocence available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the
Halappa Pujar and others vs. State of Karnataka 2007(6) SCALE 2006 & Mohinder
Singh and others vs. State of Punjab 2006 (10) SCC 418]
Applying the said principle also, we are of the opinion that it is a fit case,
where this Court should exercise its jurisdiction under Article 136 of the
Each one of the appellants before us was armed with deadly weapons.
came together and death was cause to the deceased. They entered into the house.
Two of the appellants had inflicted blows with swords. We are, therefore, of
the opinion, that common object on the part of each of the appellants stands
proved. Once formation of common object amongst the accused is proved, it is
not necessary for the court to consider specific overt act played by each of
Those found guilty by us should be taken into custody forthwith to serve out
their sentences as awarded by the learned trial court. The appeals are allowed.