Rajendrarajya A Alias Raju Vs. State of Maharashtra  INSC 790 (22 October
MUKHERJEE, K. T. THOMAS
APPEAL NO. 695 OF 1997
two appeals, filed under Section 2 of the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970, are directed against the judgment
and order dated August 16, 1991 of the Bombay High Court in Criminal Appeal No.
294 of 1996 whereby it set aside the acquittal of Rajya @ Raju (hereinafter
referred to as 'A-1') and Raju @ Rajendra (hereinafter referred to as 'A-2') of
the charge under Section 302/34 I.P.C. recorded in their favour by the sessions
Judge. Wardha and convicted and sentenced them thereunder.
stated the prosecution case is as under:
March 14, 1995 at or about 6 P.M. A-1 and A-2 went to the house of Ramkrishna (the deceased),
who lived in their neighbourhood, and took him to the house of Ganesh (P.W.3)
where all of them consumed liquor. Thereafter they proceeded towards Ramnagar
along the Rashtrabhasha
they reached the Ganesh temple situated on that road A- 1 and A-2 started
beating Ramkrishna: the former with a hockey stick and the latter with a stone,
when, owing to such beating he fell down they took him behind the house of one Timande
in a rickshaw and dumped him there. In the meantime two boys had gone to the
house of Ramkrishna and told his father Yadaorao (P.W.1) about the incident.
P.W.1 immediately rushed to the spot and found his son lying in a rickshaw, but
its puller was not there. While he was making arrangement to remove his son to
the hospital a police van arrived there. In that van he took his son, first to
the police station and from there to the General Hospital, Wardha. After admitting him there
P.W.1 came back to the police station and lodged a report about the incident at
8.30 P.M. On that information a case was
registered under Section 307/34 I.P.C. and investigation taken up.
that night at or about 11 P.M. Ramkrishna succumbed to his injuries. After
inquest his dead body was sent for post-mortem examination. Dr. Moon (P.W.7)
held the autopsy and found twelve injuries on his person including fractures of
his left arm and left side of the mandible.
the following morning (15.3.1985) Inspector Patil (P.W.6) went to the scene of
offence and seized a hockey stick, a stone and some earth under a panchnama.
March 15, 1985 both the appellants were arrested
and their wearing apparels which were blood stained, were seized. Those clothes
along with the articles seized from the scene of offence and the wearing
apparels of the deceased were sent for chemical examination. After receipt of
the report of such examination and completion of investigation police submitted
charge-sheet against the appellants.
appellants pleaded not guilty to the charges framed against them and contended
that they had been falsely implicated.
sustain the charge levelled against the appellants the prosecution relied upon
the ocular evidence of Raju (P.W.4) and Gulab (P.W.12), and its corroboration
by the medical evidence and the recoveries of blood stained hockey stick and
stone from the scene of offence and of blood stained clothes from the persons
of the appellants at the time of their arrest. Besides, the prosecution led
evidence through P.W.1 to prove that sometime before the incident the
appellants came to his house and took the deceased out with them
consideration of the evidence adduced by the prosecution (no witness was
examined by the defence) the trial court held that P.W.4 and P.W.12 could not
be relied upon: firstly, because they were chance witnesses and, secondly,
because they did not disclose the fact of their having seen the incident to
anybody till they were examined by the Investigating Officer in the afternoon
of May 15, 1985. It further observed that in view of the admission of P.W.12
that the two appellants were not known to him from before it was the incumbent
duty of the Investigating Agency to have a test identification parade held and
in absence thereof their identification by him (P.W.12) for the first time in
Court was of no moment. As, according to the trial court, the other
circumstances alleged against the appellants, by themselves, did not unerringly
point towards the guilt of the appellants, it gave them the benefit of
reasonable doubt. In reversing the order of acquittal, the High Court observed
that in absence of any material brought on record that the two eye witnesses
were inimically disposed towards the appellants or that they were interested in
the cause of the prosecution, the trial court was not at all justified in
discarding their evidence, more, so, when on being interrogated by the
Investigating Officer on the following day they narrated the incident. The High
Court found their evidence not only trustworthy but fully corroborated by the
medical evidence and other circumstantial evidence.
This being a statutory appeal we have gone through the entire evidence on
record and the judgments of the learned Courts below. Having done so we are
constrained to say that the disinclination of the trial court to accept the
evidence of the two eye witnesses and, for that matter, the entire prosecution
case was not proper. Raju Balwe (P.W.4) testified that on the day in question
he went to the shop of Gulab Ahuja (P.W.12) on Station Road at or about 6 P.M. as he wanted to buy some earthen pots. Accompanied by him they
proceeded on a scooter along Rashtrabhasha Road to got to Hind Nagar for the purpose. On the way they saw a number of
people present near the Ganesh temple. They alighted from the scooter and found
A-2 beating Ramakrishna with a hockey stick; and after he fell down A-1 picking
up a big stone from a nearby heap and dropping it on the leg of the victim.
raised cries they brought a rickshaw and after putting him in it dragged the
rickshaw upto some distance towards the Railway Station. The other eye witness,
namely P.W.12, fully corroborated the above testimony of P.W.4. Both these
witnesses were cross examined a length but nothing could be elicited in cross
examination to discredit their claim that they had seen the assault. As earlier
noticed one of the principal reasons that weighed with the trial Court for
disbelieving the above two witnesses was their conduct in not disclosing the
incident to anyone till they were examined by the Investigating Officer on the
following day. In repelling the above criticism the High Court observed:
that they had seen was Ramkrishna being beaten in the market place and beaten
in the market place and being removed in a rickshaw by the Station Road.
was no reason for them to apprehend that Ramkrishna must have been killed by
the accused Nos. 1 and 2. In fact, Ramkrishna died at about 10 P.M., after he was removed to the hospital. The apathy of
even the law-abiding citizens in reporting the outrages, to which they were
witnesses, is too notorious to merit a mention, and merely because these
witnesses had not reported the matter to the police, it would not follow that
they were not telling the truth." In absence of anything elicited in cross
examination to indicate that these two witnesses were interested in the
prosecution of the appellants we are in full agreement with the above quoted
observations of the High Court. The other criticism levelled by the trial Court
that they were chance witnesses is also wholly unmerited for in respect of an
incident that takes place on a public road, the passers-by would be the best
witnesses. We have, therefore, no hesitation in concluding that the claim of
the above two witnesses that they had seen the incident cannot be disputed at
That brings us to the question whether their identification of the two
appellants as the miscreants can be safely relied upon. So far as the identification
of A-1 is concerned we find that he (A-1) was known to both of them from
before. In such circumstances their identification of A-1 as one of the two
miscreants who assaulted the deceased with a stone can not be questioned.
Resultantly, we need not deal with or delve into the circumstantial evidence
pressed into service by the prosecution to buttress the evidence of the eye
witnesses in proof of the accusation levelled against A-1.
same cannot, however, be said about their identification of A-2 as the other
miscreant for they admitted that they saw him for the first time on that day.
view of their above admission and in absence of any T.I. parade held for
identification of A-2 immediately after his arrest, we find it difficult to
solely rely upon the identification of A-2 by the witnesses for the first time
in Court and that too after a lapse of almost one and half years after the
is of course true that the prosecution led evidence through P.W.1, father of
the deceased, to prove that about an hour earlier before the incident both A-1
and A-2 came, and accompanied by the deceased left his house. The evidence of
P.W.1, so far as it relates to identification of A-1, cannot also be relied
upon for even though he claimed to have known A-2 from before, in the F.I.R. he
did not mention the name of A-2. When he was confronted with his such material
omission he asserted that he mentioned the name of A-2 but he could not assign
any reason why it did not find place in his report. The evidence of P.W.1,
therefore, does not come in aid of the prosecution to prove that A-2 was the
other miscreant. As from the other circumstantial evidence such an irresistible
conclusion cannot be drawn, he is therefore entitled to the benefit of doubt.
the conclusions as above we allow Criminal Appeal No. 683 of 1991 filed by Raju
@ Rajendra (A-2) and set aside the conviction and sentence recorded against him
under Section 302/34 I.P.C.. The appellant, who is in jail, be released
forthwith. The other appeal (Criminal) Appeal No. 695 of 1997) preferred by Rajya
alias Raju (A-1) is, however, dismissed.