REPORTABL E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1641 OF 2007

HIMMAT SUKHADEO WAHURWAGH & ORS. APPELLANTS

VS.

STATE OF MAHARASHTRA ...RESPONDENT

J U D G M E N T

HARJIT SINGH BEDI, J.

1.This appeal is directed against the judgment of the

Bombay High Court dated 24

th

April 2007 whereby the State

appeal against acquittal against the judgment of the Additional

Sessions Judge, Akola has been allowed and the accused

convicted and sentenced for offences punishable under

Section 302/149 of the IPC etc. The facts are as under:

2.At about 4 p.m. on 11

th

June 1989 Babarao Kolhe, his

brother Jaidev Kolhe and grandson Sanjay PW-1 residents of

village Panaj, went to plough their fields, about one-and-a half

kilometers away from the village. As they were returning home

in their bullock cart, they were waylaid by the eight accused,

variously armed with axes and sticks who attacked Babarao

and Jaidev. Sanjay escaped from the spot and reached home

and informed his grandfather Namdeo Kolhe about what had

happened, giving details of the injuries caused by each of the

accused. In the meantime, the bullock cart sans Babarao and

Jaidev too returned to the residence in the village. Namdeo

Kolhe thereupon called his sons Dadarao and Wasudeo and

alongwith several other persons went in search and found

Babarao and Jaidev lying seriously injured in the field of one

Vishwanath Akotkar. It is the case of the prosecution that

Jaidev made a dying declaration to Dadarao that the eight

accused had beaten him and Babarao. The two injured were

thereafter taken homeward and as the party entered the

village. Namdeo and the others received information that the

accused were searching for them as well so that they too could

be killed. Dadarao and Wasudeo thereupon left the cart and

returned home by a circuitous route. Namdeo then left for the

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house of the Police Patil accompanied by his grandson

Bhimrao PW 4 and Deokabai PW 5 but he too was assaulted

along the way by the accused. Bhimrao rushed back home

and narrated the incident to his mother Shantabai and to his

father. The accused also threatened Deokabai that they would

kill her as well on which she made a hasty retreat to her

home. Wasudeo then went to Karla to send a message to the

Police at Akot on phone, but he could not get the connection

on which the operator him to call the police at Anjangaonsurji

Police Station. The message was accordingly conveyed by the

Anjangaonsurji police to Akot police station on which PSI

Thombre recorded the message in the Daily Diary and also

informed Inspector Patil PW 14 about the incident. This police

officer reached Panaj at about 1:00 a.m. and on enquiry found

that Babarao, Jaidev and Namdeo were dead. He then

recorded the statement of Dadarao on which a First

Information Report under Section 302 r/w Section 34 of the

Indian Penal Code was registered. The Police also started on

the investigation and sent the dead bodies for the post mortem

examinations. The accused, who did not make an

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attempt to run away, were arrested from the village the very

same day and on their disclosure statements, the weapons of

offence as also bloodstained clothes were recovered. On

committal the Additional District Judge framed charges under

Sections 147, 148 and 149 r/w Section 302 of the IPC against

the accused. The Trial Court in the course of a somewhat

laboured judgment held that the deposition of Sanjay PW 1,

the solitary eye witness to the murders of Jaideo and Babarao,

could not be believed as his conduct belied his presence in as

much that after reaching home he had hidden himself in the

house of one Abgad and had not reported the matter to his

neighbours. The Court also held that the graphic details of the

injuries caused by each of the accused made his story

improbable. The statements of Dadarao PW 2, to whom Jaideo

(deceased) had made a dying declaration and Wasudev PW 3

naming the accused as their assailants were also discarded,

on the premise that there were many improvements vis-à-vis

their statements under Section 161 of the Cr.P.C. The Trial

Court also observed that the witnesses were closely related to

the deceased and to each other and as there appeared to be no

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plausible motive for the murders and the delay in the lodging

of the FIR were other factors which cast a serious doubt on the

prosecution’s story. The Trial Judge accordingly, by his

Judgment dated 20

th

February 1991, acquitted the accused.

On appeal the High Court observed that the finding of the

Court that the eye witness account was unreliable was

erroneous, the more so as Sanjay, who was a witness to the

first two murders, though a child, was absolutely reliable. The

Court also found that the testimonies of PW 4 Bhimrao, PW 5

Deokabai and Anandrao PW 6 with respect to the assault and

murder of Namdeo too were reliable and had to be accepted.

The High Court also observed that the finding of the Additional

Sessions Judge that there was no apparent motive for the

murders was, on the face of it, unacceptable as it was the

admitted position that in 1981, Namdeo (deceased) and his

sons had been prosecuted for an attempt to murder Sukhdeo,

father of accused nos. 1 to 5 and had been convicted and

sentenced to rigorous imprisonment for five years but on

appeal in the High Court, the sentence had been reduced to

three years whereafter the accused had been released from jail

5

in February 1989. The High Court, thus, deduced that the

present incident, which took place on 11

th

June 1989 was a

fall out of the incident of 1981 and had occurred about four

months after the accused had been released from jail. The

Trial Court further held that the medical evidence given by Dr.

Jaiswal PW 7 and the chemical examiners report corroborated

the eye witness account. The Court also believed the statement

of PW 2 Dadarao with respect to the dying declaration made by

Jaideo. Having recorded its findings on these basic issues, the

High Court reversed the order and judgment of acquittal and

convicted all the accused for offences punishable under

Sections 147, 148 and 302 r/w 149 of the Indian Penal code

and sentenced each of them as under; two years rigorous

imprisonment for the offence punishable under Section 147 of

the Indian Penal Code, three years rigorous imprisonment for

the offence under Section 148 and to imprisonment for life and

a fine of Rs.5,000/- in-default to suffer rigorous

imprisonment for one year for the offence punishable under

Section 302 r/w Section 149. It is in this background that the

matter is before us by way of Special Leave.

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3.At the very outset, it has to be pointed out that the two

warring groups belong to Village Panaj, live in the same

locality and belong to the same caste. They are also, within

themselves, very closely related inter se. Namdeo (deceased),

was the father of Babarao and Jaideo (deceased) whereas

Dadarao PW 2, and Wasudeo PW 3 are his sons and PW 1

Sanjay is the son of Babarao whereas Bhimrao PW 4 is the son

of Dadarao aforesaid and Shantibai PW 10. Likewise we see

from the record that the appellants Himmat, Siddhartha,

Gautam, Anil and Sanjay Kumar are brothers; Waman- is an

uncle of the above mentioned accused whereas Prakash and

Suresh are his sons.

4.In this background, Mr. R.S. Lambat, the learned counsel

for the appellants has argued that the Trial Court on a minute

examination of the evidence had thought it fit to record an

order of acquittal, a view which was clearly tenable on the

facts of the case, and the High Court was, thus, not justified in

re-appreciating the evidence and arriving at a different

conclusion. He has highlighted that an accused was

presumed to be innocent till held guilty by a competent court

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and this principle was immeasurably strengthened where the

Trial Court had made an order of acquittal. There can be no

quarrel with these basic propositions, but we are of the

opinion that the evidence in the case suggests that the

judgment of the Additional Sessions Judge was unjustified in

the face of extremely credible evidence and was based on a

complete misconception as to the evidence on record. We are,

therefore, of the opinion that the High Court was justified in

interfering in the matter on a re-appreciation of the evidence.

In this connection, we refer to the judgment in Chandrappa

and others vs. State of Karnataka (2007) 4 SCC 415

wherein it has been observed that an Appellate Court has full

authority to re-appreciate and re-consider the evidence in a

case of acquittal barring a case where two views are possible

on the evidence and one favouring the accused has been

taken. However where the judgment of the Trial Court is based

on a complete misreading of the evidence and a view in favour

of the accused was not justified and only one view with regard

to the culpability of the accused was possible, the High Court

would be failing in its duty if it did not interfere. Similar views

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have been expressed in Swami Prasad vs. State of Madhya

Pradesh J.T. 2007 (4) SC 337 , and a plethora of other

judgments. We are, therefore, of the opinion that interference

by the High Court was called for in the circumstances.

5.Mr. Lambat then argued that there was no motive for the

triple murder as the earlier incident of 1981 had apparently

been forgotten inasmuch that the relations between the parties

had admittedly improved and they were on visiting terms. It

was then submitted that the first two murders had been seen

by Sanjay PW 1 but his presence was doubtful as he had

disappeared from the scene and hidden himself in the house of

Abgad and had surfaced only the next morning, and thereafter

narrated his story. It has also been pleaded that the evidence

of PW 4 Bhimrao another young child of about 13 years, PW 5

Deokabai and Anandrao PW 6 who had witnessed the attack

on Namdeo, could not be believed as the story projected by

them that they had rushed into their houses after seeing the

incident and had done little else could not be believed. It has

accordingly been emphasized that the entire eye witness

account was based on the testimony of close and interested

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relatives of the deceased and though, the entire incident had

happened either in the village itself or just outside of it, no

independent witness had come forth in support of the

prosecution. It has been pointed out that in this background

the fact that the FIR had been filed belatedly was a factor

which cast a serious doubt on the prosecution story.

6.The Counsel for the respondent State has, however,

submitted that the motive for the incident was writ large on

the facts of the case and that merely because the primary

witnesses Sanjay and Bhimrao were related to the deceased

was no ground to disbelieve their testimonies particularly as

they had been corroborated by the dying declaration made by

Jaideo to Dadarao PW 2, the medical evidence in the case, as

also the recovery of the murder weapons at the instance of the

accused which were found on analysis to have been stained

with human blood of identifiable blood groups.

7.Before we embark on an appreciation of the evidence

some thoughts come to mind. The criminal justice system as

we understand it as of today in our country, is beset with

major issues, sometimes unrelated to what happens in court,

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particularly in cases involving more than one accused.

Fudged and dishonest first information reports, tardy and

misdirected investigations and witnesses committing perjury

with not the slightest qualm or a quibble make the decision of

even the most diligent and focused of judges particularly

galling and difficult. Several other factors inhibit the proper

conduct of proceedings in a trial. As per “Crimes in India –

1998” a total of 5,42,345 cases under the Indian Penal Code

including those carried over from the previous years, and

another 6,37,345 criminal cases under Special and Local Laws

making a backlog of 11,79,690 cases were pending

investigation. It has also been found that the delay in the

investigation and disposal of a criminal case makes the

possibility of acquittal that much higher as witnesses tend to

turn hostile. The Fourth Report of the National Police

Commission (1980) Chapter XXVIII gives some alarming

statistics inasmuch that a sample study of Sessions cases in a

crime infested district revealed that out of 320 cases disposed

off in the concerned Sessions court during the 8 months

working period in a year, only 29 ended in conviction while

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291 ended in acquittal. In conclusion, the Commission

observed:

“As many as 130 cases, which included

21 murders, 58 attempts at murder, 17

decoities and 9 robberies, took more than

3 years for disposal, reckoning the time

from the date of registration of First

Information Report. It was also noticed

that the longer a case took for disposal

the more were the chances of its

acquittal. Protracted proceedings in

courts followed by acquittal in such

heinous crimes tend to generate a feeling

of confidence among the hardened

criminals that they can continue to

commit crimes with impunity and

ultimately get away with it all at the end

of leisurely and long drawn legal battles

in courts which they can allow their

defence counsel to take care of. Such a

situation is hardly assuring to the law

abiding citizens and needs to be

immediately corrected by appropriate

measures even if they should appear

drastic and radical.”

8. We hasten to add that these alarming figures are not

universally applicable to all districts, but they are undoubtedly

indicative of the malaise that afflicts our criminal justice

system and paint a grim picture. The Commission also found

that one of the primary reasons for the failure of the

prosecution was the propensity of prosecution witnesses to

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turn hostile and several reasons for this trend have been spelt

out. The Commission also quoted with approval from a letter

of a senior Sessions Judge in which he wrote that:

“A prisoner suffers for some act or

omission but a witness suffers for no

fault of his own. All his troubles arise

because he is unfortunate enough to be

on the spot when the crime is being

committed and at the same time “foolish”

enough to remain there till the arrival of

the police. It is for these reasons that

people do not take the victim of a road

accident to hospital or come to the help of

a lady whose purse or gold chain is being

snatched in front of her eyes. If some

person offers help in such cases he is to

appear as a witness in a court and has to

suffer not only indignities and

inconveniences but also has to spend

time and money for doing so. Some time

the witnesses incur the wrath of

hardened criminals and are deprived of

their lives or limbs.”

9. In this pernicious state of affairs, the judge, gravely

handicapped, has to apply his knowledge of the law and his

assessment of normal human behaviour to the facts of the

case, his sixth sense based on his vast experience as to what

must have happened, and then trust to God and good luck

that he strikes home to come to a right conclusion. To our

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mind, the last two are undoubtedly imponderables but they do

come into play in negotiating the judicial minefield. This is an

undeniable fact whether we admit it or not

10.We now take up for discussion the various issues raised

by the learned counsel. Happily, the pitfalls that we have

noted above do not exist in the present case. Namdeo, the

deceased and his sons were prosecuted for an attempt to

murder Sukhdeo, the father of accused 1 to 5 in the year 1981

and were sentenced to five years by the trial court, but the

sentence was reduced to three years by the High Court and

the accused were released from jail in February 1989. The

present incident took place within four months of that release.

It is true that some of the prosecution witnesses have testified

that during the eight years between the earlier incident and

the present one, the relations between the two parties had

improved and that they were on visiting terms as well. It is

obvious, however, that the release of Namdeo and his sons

from jail was an event which undoubtedly ignited old passions

and animosities and precipitated the incident. The finding of

the Trial Court that there was no motive for the murders is,

14

thus, on the face of it unacceptable and it has been so found

by the High Court, a finding that we too firmly endorse.

11.The record reveals that the incident happened in two

parts, first at about 6:00 p.m. and again an hour later. In the

first incident Babarao and Jaideo were killed, an event which

was witnessed by PW 1 Sanjay, the son and nephew of the two

deceased, respectively. The second incident was witnessed by

PW 4 Bhimrao, PW 5 Deokabai and PW 6 Anandrao. We now

take up for consideration the evidence of each of these two

sets of witnesses.

12.It has been submitted by the learned counsel for the

appellants that Sanjay was a mere child of 11 years of age and

in running away and hiding himself in the house of Abgad

particularly after his father had been brutally murdered, was

an unacceptable story. We find no merit in this plea. On a

perusal of Sanjay’s evidence, it stands revealed that he was

able to discern between right and wrong and despite a

searching cross-examination made by the defence lawyer

nothing adverse could be brought out. Sanjay testified that he

had gone along with the two deceased to the plough fields at

15

about 4:00 p.m. and while they were returning home, they had

been surrounded by all the accused near the field of one

Vishwanath and injuries had been caused to his father and

uncle. Sanjay also specified the weapons that each of the

accused was holding and the manner of their use. He also

stated that in the confusion that followed the attack, he had

managed to escape, had rushed home, revealed the story to

his family and then hidden himself till the next morning. It is

also evident from the testimonies of the other prosecution

witnesses Bhimrao, Deokabai and Anandrao that when they

along with Namdeo (deceased), were planning to go to the

Police Patil to lodge the report with regard to the first incident,

they had been apprehended by the accused and injuries had

been caused to Namdeo which had led to his death. Deokabai

further deposed that after this incident the accused had also

come to her home and threatened to beat her as well. PW 14

Sub Inspector Vinayak, one of the investigation officers, in his

deposition stated that when he reached the village at about

1:45 a.m. on 12

th

June 1989, he noticed an unusual and

artificial calm in the village, an atmosphere of panic and fear

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and that the inhabitants were unwilling to even open the door

till they were told that the police had arrived. It is, therefore,

obvious that the accused had let loose a reign of terror and

after having killed three persons were still not satisfied and

were looking around for other victims from the Kolhe family.

Little wonder, therefore, that Sanjay had thought it fit and

prudent to hide himself till the coast was clear. It is true that

the Addl. Sessions Judge did not put any questions to Sanjay

to ascertain his suitability as a witness. We, however, find

from the evidence that he fully understood the implications of

what he was saying and despite a stiff cross-examination

nothing to discredit him could be brought out. We endorse

the finding of the High Court that Section 118 of the Evidence

Act does not preclude a child from being a witness and the

only test that is applicable is as to whether the witness

understood the sanctity of an oath and the import of the

questions that were being put to him.

13.In Nivrutti Pandurang Kokate and Others vs. State

of Maharashtra (2008) 12 SCC 565 , it has been observed

that the Section 118 of the Evidence Act envisages that all

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persons shall be competent to testify unless the Court thinks

otherwise. In summing up the various judgments on this

issue, this is what this Court had to say:

“The decision on the question whether the

child witness has sufficient intelligence

primarily rests with the trial Judge who

notices his manners, his apparent

possession or lack of intelligence, and the

said Judge may resort to any examination

which will tend to disclose his capacity

and intelligence as well as his

understanding of the obligation of an oath.

The decision of the trial court may,

however, be disturbed by the higher court

if from what is preserved in the records, it

is clear that his conclusion was erroneous.

This precaution is necessary because

child witnesses are amenable to tutoring

and often live in a world of make-believe.

Though it is an established principle that

child witnesses are dangerous witnesses

as they are pliable and liable to be

influenced easily, shaped and moulded,

but it is also an accepted norm that if after

careful scrutiny of their evidence the court

comes to the conclusion that there is an

impress of truth in it, there is no obstacle

in the way of accepting the evidence of a

child witness”.

14.We are of the opinion that Sanjay was aware of what had

happened in the answers given by him in the course of his

evidence which clearly proved that he was a competent

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witness. We also find that Sanjay’s statement has been duly

corroborated by the dying declaration made by Jaideo, to

Dadarao PW 2 who had rushed to the spot on being informed

by Sanjay as to what had happened.

15.The murder of Namdeo had been witnessed by PW 4

Bhimrao, PW 5 Deokabai and PW 6 Anandrao. Admittedly,

PW 4 Bhimrao who was then 13 years of age, was a child

witness and is the grandson of Namdeo. He deposed that while

accompanying his grandfather to lodge the report with the

police Patil with respect to the earlier murders, they had met

Deokabai on the way and she too had accompanied them.

They had thereafter been accosted by all the accused who were

armed with axes and sticks and they had caused injuries to

Namdeo with their weapons. He also deposed that on seeing

this, he had run home, informed his mother about the

incident and on account of the panic prevailing in the village,

he too was hidden away till the next morning. We find that

the cross-examination of this witness was very sketchy and

nothing fruitful could be elicited by the defence counsel.

Bhimrao’s statement also finds corroboration from the

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evidence of Deokabai a member of the Gram Panchayat, and

Anandrao. It has come in Deokabai’s statement that her

house and that of Namdeo were facing each other. It is,

therefore, obvious that her presence was absolutely natural.

She stated that she had witnessed the beating of Namdeo from

a distance of 15 feet. She specifically denied any relationship

with Namdeo or his family but candidly admitted that her

husband was one of the accused in the case involving Namdeo

and his sons and the accused party in the incident of 1981.

Anandrao too repeated the story given by the others and this

witness while in the witness box when called upon to identify

the accused identified six of them. He also denied any

relationship or any connection, even a remote one, with the

complainant party. We, therefore, find that though Bhimrao

was a child witness, he too satisfies the test laid down in the

above mentioned case.

16.The learned counsel for the State has also brought to our

notice some observations in the judgment of this court in

Dinesh Kumar vs. State of Rajasthan (2008) 8 SCC 270

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with respect to the evaluation of the evidence of an interested

or relation witnesses. They are:

“When the eyewitnesses are stated to

be interested and inimically disposed

towards the accused, it has to be noted

that it would not be proper to conclude

that they would shield the real culprit and

rope in innocent persons. The truth or

otherwise of the evidence has to be

weighed pragmatically. The court would

be required to analyse the evidence of

related witnesses and those witnesses

who are inimically disposed towards the

accused. But if after careful analysis and

scrutiny of their evidence, the version

given by the witnesses appears to be

clear, cogent and credible, there is no

reason to discard the same. Conviction

can be made on the basis of such

evidence”.

17. It is true, as contented, that a transformation has

indeed taken place within the last three or four decades

and from the query ‘ why should an interested witness be

believed ’ to ‘ why should such a witness be disbelieved as

he is not likely to leave out the real culprits’, reflects the

anxiety and utter helplessness of criminal courts as

independent witness tend to turn hostile.

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18.We are also aware of the fact that the evidence in most of

these cases is recorded after some delay and that in any case

if every witness were to give an identical and parrot like

statement, it would smack of tutoring and would lose

credibility. Some inconsistencies are thus bound to arise

particularly where a large number of victims, witnesses and

accused are involved and the incident itself is spread out over

a distance and period of time, as in the present case.

Moreover, the involvement of a large number of accused in the

present matter is further proved from the number of murders,

the injuries caused, and more glaringly, in that a reign of

terror had been let loose with the accused making repeated

forays into the village, looking for more members of the Kolhe

family.

19.We have also gone through the medical evidence and find

that it fully supports the prosecution’s story. The accused

were armed with axes and sticks capable of causing incised

and lacerated injuries. Two lacerated and two incised injuries

along with several fractures on the arms and legs were found

on the dead body of Namdeo. Likewise, Babarao had ten

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injuries including four incised and six lacerated with four

compound fractures, two on the arms and two on the legs.

The post mortem of Jaideo likewise revealed 14 injuries in all

of which five were incised, four were abrasions and the

remaining were lacerated with three compound fractures; two

on the leg and one on the right hand. Dr. Jaiswal PW 7

clarified that these injuries could have been caused by the

axes and sticks recovered from the accused.

20. The prosecution story, to our mind, is further fortified by

the recoveries made from some of the accused. As per the

prosecution, two axes had been recovered from the residence

of Siddhartha accused, on 14

th

June 1989. These were found

to be stained with human blood of group ‘A’. Five bamboo

sticks were seized from the house of Anil accused, on 12

th

June 1989, which were stained with human blood of group ‘A’

and group ‘O’. It has come in evidence that the blood group of

Namdeo was ‘O’ and that of Babarao and Jaideo was ‘A’.

21.In this view of the matter, the argument made by the

defence counsel that there was some delay in the lodging of

the F.I.R., even if taken as correct, becomes insignificant. On

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the contrary, however, we find that there is no delay in the

facts of the case. As per the record, after the gruesome

murders, PW 3 Wasudeo had gone to a nearby village from

where he had telephoned Village Anjangaonsurji from where

the information had further been conveyed to police station

Akot. The fact that information of the incident had been

received at Akot at 1:00 a.m. is clear from the daily diary entry

(Exh.31). In this entry, the fact that Babarao and Jaipal had

been killed also finds mention. It also appears that at that

stage Wasudeo was not aware that Namdeo too had been

killed as his murder had been committed some distance away

from his residential house and also away from the venue of the

first two murders. It has come in evidence that the police

reached the village within half-an-hour or so on which the

formal F.I.R. had been recorded. It needs reiteration that the

three murders and the manner in which the members of the

complainant party had been hunted out and killed and threats

had been held out to the other members of the Kolhe family as

well, had created an atmosphere of terror in the village and if

the entire investigation on the crucial day did not proceed with

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clock work precision, no adverse inference can reasonably be

drawn from this fact.

22.We accordingly dismiss the appeal.

……………………………. .J.

(S.B. SINHA)

…………………………… .J.

(HARJIT SINGH BEDI)

…………………………… .J.

New Delhi, (AFTAB ALAM)

Dated: May 1, 2009

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