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1997 Supreme(Bom) 100
IN THE HIGH COURT OF BOMBAY
Vishnu Sahai Mrs. R.P. Desai, JJ.
The State of Maharashtra.... Appellant.
Versus
Bhanudas Sommanna Sangolkar.... Respondent.
Criminal Appeal No. 262 of 1984, decided on 24-2-1997.
Advocates appeared :
S.R. Borulkar, Additional Public Prosecutor, for the appellant.
Shirish Gupte, for the respondent.
Headnote:Section 161-Prompt interrogation-It is not universal truth that if a witness is interrogated promptly under Section 161, Cr PC, he is a truthful witness.
Section 378-Appeal against acquittal-Appellate Court should weigh views of trial Judge.
Sections 3, 8 and 9-Code of Criminal Procedure, 1973, Sections 161 and 164-Evaluation of evidence witness in evidence implicating two other persons in the offence-In his statement under Sections 161 and 164, Cr PC he had not mentioned them-Held, contradiction can not be taken lightly.-Counsel for the respondent after cautioning us that we were seized of the matter in an appeal against acquittal straneously urged that the evidence of last seen deposed to by K does not inspire coni1dence. He candidly stated that his evidence showed that. He was not a truthful witness G cried hoarse that a perusal of the statement of Geetram Kshirsagar shows that in if he has falsely implicated two accused persons J and ff the two real brothers of the respondent. He urged that, if he could be unscrupulous enough to falsely implicate them, what was the guarantee that he was not falsely implicating the respondent G based his submission on the edifice of the admission of . K in his cross- examination. In paragraph 6, that he had neither stated in his first police statement nor in his statement before the JMFC Jath (statement under Section 164. Cr PC) that J and H were standing at the bandh. In order to do complete justice to the case, we perused his statements under Sections 161 and 164, Cr PC and we found that in them, there was no mention of the names of J and H. In such a factual matrix, we cannot lightly brush aside the submission of G.
The basic issue in appreciation of evidence is whether a witness is truthful or not in respect of an integral part of the prosecution case and once a Court comes to the conclusion that a witness is not truthful in relation to the involvement of two Co- accused persons who are none else but the brother of the third accused, in respect of whom the prosecution wants the Court to believe the witness it becomes impossible to accede to the request of the prosecution and accept the residual part of the evidence of that witness.
Sections 302 and 34-code of Criminal Procedure, 1973, Section 378(1)-Acquittal-Appeal against-Powers of court-Held, though there Is no difference between appeal against acquittal and conviction in view of Cr PC-But Nazir of Apex Court is that acquittal can be interfered only when appreciation of evidence is either grossly unreasonable, or there is some manifest Illegality in appreciation of evidence resulting in failure of justice.
It is pertinent to point out that alongwith the respondent, his two real brothers Jyoti Somanna Sangolkar and Hariba Somanna Sangolkar were also tried, but they have been acquitted vide the impugned judgment.
2.Briefly stated, the prosecution case runs as under :
Deceased Jaywant Appa Sangolkar was the cousin of the respondent and the acquitted accused. He, the respondent and the acquitted accused, resided in Sangolkar Vasti, which is situated at a distance of about 1/2 k.m. from village Khairav. The house of Jaywant Appa Sangolkar was adjacent to that of respondent. At the time of the incident, Jaywant was residing in his house with his wife Kondabai (P.W. 11), the informant; his son Appa (the second deceased); and some others. At a distance of about 400 feet from the Vasti was the temple of Lord Mahalingraya and people of the Vasti are said to have been visiting the temple; specially on Amavasya day. Geetram Kshirsagar (P.W. 12), was the pujari of the temple. He went there every morning and evening.
There was an enmical strain between Jaywant, respondent and the acquitted accused. That was on account of the dispute over the boundary of their court-yards; adjoining lands and alike matters. It is said that, about two years prior to Jaywant's murder, the respondent and acquitted accused had encroached upon his land. It is also said that on last Diwali, there was a quarrel between the acquitted accused Joyti Somanna Sangolkar and Jaywanta because the cattle of the former had trespassed in the land of the latter. Ever since then Jaywant on one hand; and the respondent and others on the other were not on talking terms. It is said that Jaywant had gone in the village requesting Yellappa Dhemre and Laxman Yedve to settle the disputes, but the respondent and the acquitted accused did not let them settle the same.
The immediate motive for the crime is said to be that, a month prior to the murder of Jaywant, his goat was stolen. The respondent and the acquitted accused had a feeling that they were being accused for the theft.
It is alleged that on 17-8-1982, which was a Amavasya day, at about 7 p.m., Geetram Kshirsagar P.W. 12 followed by Jaywant and his son Appa came to the temple. A little later, the respondent also came there. It is said that near the temple was a Deepmal. Jaywant, after leaving his son Appa inside the temple, went to the Deepmal for pouring oil. At that time, it started raining. Consequently, Jaywant came inside the temple; took Appa and thereafter, followed by the respondent left the temple. The evidence is that, while Jaywant, Appa and the respondent were in the temple, one Krishna Kshirsagar (P.W. 14) also came to the temple. He is said to have followed Jaywant, Appa and the respondent when they left the temple.
3.The evidence of Krishna Kshirsagar (P.W. 14) is that, since it was raining and wind was blowing, he was walking hurriedly flashing his torch. In torch-light he saw the respondent assaulting Jaywant with an axe on the bandh. He also saw that the acquitted accused were standing by the side of bandh. Jaywant fell down on the ground as a consequence of the assault. His son Appa was with him. When he flashed his torch, the respondent threatened him saying that he should not disclose the fact to anybody else and if he did so, he would suffer the same fate. From the evidence of this witness, it appears that, Appa's murder was not committed in his presence. On account of the warning given by the respondent, Krishna Kshirsagar came to his house and did not move out for 3 days.
4.Meanwhile, when Jaywant and Appa did not return to the house, Kondabai, the wife and mother respectively, got
