# MAHESH S/O.JANARDHAN GONNADE v. STATE OF MAHARASHTRA

- **Citation:** [2008] 6 S.C.R. 158
- **Court:** Supreme Court of India
- **Decided:** 2008-04-10
- **Case number:** Criminal Appeal No. 545 of 2007
- **Bench:** P.P. Naolekar, Lokeshwar Singh Panta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahesh-s-o-janardhan-gonnade-v-state-of-maharashtra-24544
- **Pages:** 42

## Headnote

~ .
Code of Criminal Procedure, 1973:
c
s. 378 - Appeal against acquittal - High Court reversing
the judgment of acquittal passed by trial court and convicting
the accused uls 302 /PC - Held: On facts of the case,
interference by High Court was whol/y justified and warranted
- Findings recorded by High Court do not suffer from any
manifest error or improper and misappreciation of evidence
D on record.
Penal Code, 1860:
.., '
s. 302 - Accused stabbing to death his former beloved in
presence of her husband and mother and other eye-witness -
E A/so causing injuries to husband and mother of deceased -
Trial Court acquitting the accused disbelieving the injured and
other eye-witnesses for being related witnesses as a/so on the
ground that no independent witness was examined -Acquittal
set aside and accused convicted by High Court - Held: Mere
F relationship is not a factor to affect credibility of a witness - In
such cases Court has to adopt a careful approach and analyse
evidence to find out whether it is cogent and credible - Further,
Testimony of witnesses who received injuries in the
occurrence, if found trustworthy, cannot be discarded merely
G for non-examination of independent witnesses - High Court
on reappraisal and reassessment of entire evidence on record
has rightly held the accused gwlty u/s 302 /PC and sentenced
him to imprisonment for life - Evidence - Testimony of related
witnesses and hostile witnesses - Evidentiary value of - Non-
" ~
H
158
,r y
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
159
MAHARASHTRA
examination of independent witnesses - Effect of.
A
The accused-appellant was prosecuted for murder
of 'S', the wife of P.W.8, and causing injuries to P.W.8 and
his mother-in-law,'N'. According to the prosecution case,
the accused was in love with the deceased prior to her ·s
marriage with P.W.8. A few days prior to the marriage, the
accused went to the house of P.W.8 and disclosed the
fact to him and threatened him in presence of his brother
(P.W.7) with dire consequences if he married 'S'. However,
the marriage of 'S' with P.W.8 took place. On the day of the
incident P.W.8 and 'S' were at the house of his mother-inC
law 'N'. In the evening around 5.00 or 5.30 all the three
along with the nephew (PW.16) and niece (PW 4) of 'S'
went for evening walk towards the river side. While
returning, they saw the accused and PW5 going on a
motor cycle towards the river bridge. When 'N' and party D
reached near her house, P.W.8 heard a gunshot fired at
him from behind and he fell down. He saw the accused
keeping the gun aside, rushing towards his wife and
stabbing her on head, neck and back as a result of which ·
she collapsed. When 'N' tried to intervene, the accused E
inflicted knife blows on her also. The accused, noticing
the people gathering at the scene of occurrence, fled away.
P.W.1, a medical practitioner, whose dispensary was
nearby reached the spot and took all the three injured to
the Government Hospital where wife of P.W.8 died at about F
7.30 p.m. the same day. P.W.8 and 'N' were referred to the
Medical College. PWs 4 and 16 went to the house of PW.6,
the grandfather of 'S', and narrated the incident to him.
PW.6 went to the scene of occurrence and on coming to
know that the injured had been taken to the hospital, G
rushed to the hospital where he saw the victims lying
injured and 'S' as unconscious. The accused was arrested
the same day and at his instance weapons of the crime, a
gun and a knife, were stated to have been recovered.
The trial Court did not believe the prosecution case
H
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A and acquitted the accused of all the charges. On appeal
by the State, the High Court found that 'N' had died during
the pendency of the trial and she could not be examined
as a witness. Charges against the accused u/s.324 for
causing knife injuries to 'N' and u/s.307 for causing
B gunshot injuries to P.W.8 were not proved and, therefore,
he was acquitted of both the charges. However, the High

## Text

_Characters 0–39,696 of 87,069. This is a partial read: ask again with offset=39696 for what follows._

[2008] 6 S.C.R. 158
A
MAHESH S/O.JANARDHAN GONNADE
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 545 of 2007)
B
APRIL 10, 2008
(P.P. NAOLEKAR & LOKESHWAR SINGH PANTA, JJ.)
~ .
Code of Criminal Procedure, 1973:
c
s. 378 - Appeal against acquittal - High Court reversing
the judgment of acquittal passed by trial court and convicting
the accused uls 302 /PC - Held: On facts of the case,
interference by High Court was whol/y justified and warranted
- Findings recorded by High Court do not suffer from any
manifest error or improper and misappreciation of evidence
D on record.
Penal Code, 1860:
.., '
s. 302 - Accused stabbing to death his former beloved in
presence of her husband and mother and other eye-witness -
E A/so causing injuries to husband and mother of deceased -
Trial Court acquitting the accused disbelieving the injured and
other eye-witnesses for being related witnesses as a/so on the
ground that no independent witness was examined -Acquittal
set aside and accused convicted by High Court - Held: Mere
F relationship is not a factor to affect credibility of a witness - In
such cases Court has to adopt a careful approach and analyse
evidence to find out whether it is cogent and credible - Further,
Testimony of witnesses who received injuries in the
occurrence, if found trustworthy, cannot be discarded merely
G for non-examination of independent witnesses - High Court
on reappraisal and reassessment of entire evidence on record
has rightly held the accused gwlty u/s 302 /PC and sentenced
him to imprisonment for life - Evidence - Testimony of related
witnesses and hostile witnesses - Evidentiary value of - Non-
" ~
H
158
,r y
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
159
MAHARASHTRA
examination of independent witnesses - Effect of.
A
The accused-appellant was prosecuted for murder
of 'S', the wife of P.W.8, and causing injuries to P.W.8 and
his mother-in-law,'N'. According to the prosecution case,
the accused was in love with the deceased prior to her ·s
marriage with P.W.8. A few days prior to the marriage, the
accused went to the house of P.W.8 and disclosed the
fact to him and threatened him in presence of his brother
(P.W.7) with dire consequences if he married 'S'. However,
the marriage of 'S' with P.W.8 took place. On the day of the
incident P.W.8 and 'S' were at the house of his mother-inC
law 'N'. In the evening around 5.00 or 5.30 all the three
along with the nephew (PW.16) and niece (PW 4) of 'S'
went for evening walk towards the river side. While
returning, they saw the accused and PW5 going on a
motor cycle towards the river bridge. When 'N' and party D
reached near her house, P.W.8 heard a gunshot fired at
him from behind and he fell down. He saw the accused
keeping the gun aside, rushing towards his wife and
stabbing her on head, neck and back as a result of which ·
she collapsed. When 'N' tried to intervene, the accused E
inflicted knife blows on her also. The accused, noticing
the people gathering at the scene of occurrence, fled away.
P.W.1, a medical practitioner, whose dispensary was
nearby reached the spot and took all the three injured to
the Government Hospital where wife of P.W.8 died at about F
7.30 p.m. the same day. P.W.8 and 'N' were referred to the
Medical College. PWs 4 and 16 went to the house of PW.6,
the grandfather of 'S', and narrated the incident to him.
PW.6 went to the scene of occurrence and on coming to
know that the injured had been taken to the hospital, G
rushed to the hospital where he saw the victims lying
injured and 'S' as unconscious. The accused was arrested
the same day and at his instance weapons of the crime, a
gun and a knife, were stated to have been recovered.
The trial Court did not believe the prosecution case
H
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A and acquitted the accused of all the charges. On appeal
by the State, the High Court found that 'N' had died during
the pendency of the trial and she could not be examined
as a witness. Charges against the accused u/s.324 for
causing knife injuries to 'N' and u/s.307 for causing
B gunshot injuries to P.W.8 were not proved and, therefore,
he was acquitted of both the charges. However, the High
Court found the charge of murder of 'S' to ·have been
proved against the accused and convicted and sentenced
him u/s.302 IPC.
C
In the instant appeal filed by the accused it was
contended for the appellant that the High Court
committed an error in interfering with the order of acquittal
passed by the trial court merely because another view
could have been taken; that the High Court failed to
D appreciate the finding of fact recorded by the trial Court
that the eye-witnesses were interested witnesses as they
were related to the deceased and their evidence was not
corroborated by any independent witness; that the
'Panch' witnesses did not support the prosecution case.
E It was also contended that there were several
discrepancies in the prosecution case and, therefore,
conviction of the appellant u/s.302 was unsustainable.
On the question: whether the High Court in exercise
of its appellate jurisdiction exceeded its limitations in an
F appeal against acquittal,
Dismissing the appeal, the Court
HELD: 1. The substance of occurrence of incident
as stated by the prosecution is not disputed. The Trial
G Judge has disbelieved the evidence of PWs 8, 4, 16 and
6, merely on the grounds that they are close relati11es of
the deceased and therefore, interested witnesses; and
that no other independent witnesses who were present
at the scene of occurrence, had been examined by the
H prosecution and there was no independent corroboration
" '
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
161
MAHARASHTRA
,.".
to the eye-witness account of the interested witnesses. A
As has been held by this Court,-mere relationship is not a
factor to affect the credibility of a witness. It is more often
than not that a relation would not conceal actual culprit
and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is B
t ,..
made. In such cases, the court has to adopt a careful
approach and analyse evidence to find out whether it is
cogent and credible. [para 27, 37 and 38] [182-E; 189-B-E]
Salim Sahab vs. State of M.P (2007) 1 SCC 699; Masalti
vs. State of UP AIR 1965 SC 202; State of Punjab vs. Jagir c
Singh (1974) 3 sec 277 and Gangadhar Behera VS. State of
Orissa (2002) 8 sec 381 - relied on.
2.1. PW.8, the injured witness, has categorically
narrated the incident. This witness is not a stranger to D
...
:>
the appellant and he has clearly identified the appellant
as an assailant. His evidence has not been shattered or
discredited by the defence in spite of searching crossexamination. He is a natural witness being an injured
person and his evidence is cogent, satisfactory and
E
consistent which has been properly re-appreciated and
accepted by the High Court holding the appellant an
assailant of the murder of the deceased. PW.4 has fully
corroborated the testimony of PW.8. On a scrutiny of the
evidence of this witness it is found that in spite of lengthy
cross-examination by the defence, her testimony could
F
.. ,\.
not be impeached in regard to the manner in which the
appellant had assaulted the deceased with knife. She is a
truthful witness and has given positive, satisfactory and
consistent account of the incident. The evidence of this
witness is free from any doubt and cannot be disbelieved G
or discarded simply because she is a relative of deceased.
"'
PW.16 has corroborated the testimony of PWs 8 and 4 in
/
its entirety. The evidence of this witness was consistent
and free from embellishment. Nothing has been elicited
H
162
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A in the cross-examination to discredit his testimony. P.W.6
corroborated the testimony of PWs-4 and 16 who had
narrated the entire incident to him naming the appellant
the author of the serious offence of murder of 'S'. [para
28, 31) [183-D-E-F; 184-G, 185-A, B, D, E]
B
2.2. PW-8 and his brother PW-7 deposed that the
appellant had extended threats to PW-8 to get ready for
facing dire consequences if he married 'S' as the appellant
was in love with her since their school days. Both clearly
and unambiguously deposed in regard to the motive of
C the appellant. The evidence of these witnesses on this
aspect has remained intact and untouched from the
defence side. [para 42, 44) [192-G, H; 194-F]
2.3 The conduct of PWs-4 and 16, the eye-witnesses,
0 in not accompanying the injured persons to the hospital
and not reporting the incident to the Police cannot be
viewed with suspicion. At the time of the occurrence PW4 was about 19 years of age whereas PW-16 was hardly
14 years of age. Both these witnesses on noticing the
appellant giving repeated knife blows on the neck, head
E and back of the deceased and inflicting severe injuries to
PW-8 and 'N', immediately rushed to the house of PW-6
and promptly reported the entire incident to him. The
conduct of these two children, in these circumstances,
cannot said to be unnatural. These witnesses have
F withstood the cross-examination with courage and
boldness and their testimony could not be impeached by
the defence in regard to the genesis of the incident. The
eye-witnesses have no animus against the appellant to
implicate him in a false case and leaving the real assailant
G from the clutches of law. In the circumstances, no fault
can be found in regard to the conduct of these witnesses.
[Para 43) [193-A, B, D-G]
H
Surinder Singh vs. State of Punjab (1989) Supp. (2) SCC
21 - distinguished.
- ;
< L
....
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
163
MAHARASHTRA
.,J,
2.4 It is well settled that merely because the A
witnesses examined by the prosecution are relatives of
the victim, that fact by itself will not be sufficient to discard
and discredit the evidence of the relative witnesses, if
otherwise they are found to be truthful witnesses. The rule
of caution is that the evidence of relative witnesses has
B
t
-
to be reliable evidence which has to be accepted after deep
and thorough scrutiny. In the instant case, PWs-4, 6, 8 and
16 have consistently supported the prosecution case in
their statements made before the Police as well as in
deposition before the trial court. There is no cogent and
valid reason to discard and discredit their testimony, more c
so when their evidence is corroborated by medical
evidence and other important piece of evidence appearing
on record. [para 39, 40] [190-D, E, F, G]
3.1. As regards the prosecution witnesses turning D
hostile, P.W.1, is a medical practitioner of the same village .
. ,
He knew deceased 'S', her mother 'N' and the appellant.
His dispensary is at about 50 feet from the ,Jlace of
occurrence. He lodged the report [Ext. 28] of the incident.
He stated that on hearing th:? shouts of the deceased, he
E
rushed to the spot of incident and noticed her lying with
bleeding injuries on the road side he also spotted 'N' and
PW 8 lying on the ground in an injured condition. He took
all the three injured in a rickshaw to the Government
Hospital, where he assisted the Medical Officer in giving
F
.
...._
medical treatment to the injured persons. At about 7.30 or
8.00 p.m. as per his version, 'S' died in the hospital
whereas 'N' and PW 8 were sent for better medical
treatment to Medical College Hospital. He stated that he
reported the entire incident to the Police in the Police G
Station and made a report (Ext. 28) which was signed by
him. This witness, no doubt, has turned hostile to the
prosecution and in the cross-examination denied having
made portion marked 'A' of his statement to the Police that
he saw the appellant near the place of incident. However,
H
164
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A testimony of this witness corroborates the testimony of
injured PW-8 and other non-injured eye-witnesses to the
extent that deceased, her mother and PW.8 were lying with
bleeding injuries at the scene of occurrence on the day
of incident. [para 32] [186-C, D, E, F, G; 187-A]
B
3.2. PW-1 has chosen not to corroborate his earlier
statement made in the complaint and recorded during
investigation. He has tried to conceal the material truth
from the Court with a sole purpose of shielding and
protecting the appellant for reasons best known to the
C witness. PW-2 and PW-3 have also followed the same
trend which PW-1 had adopted. In their earlier statements
made to the Police they implicated the appellant as an
assailant, but later on they resiled from their statements.
Similarly, PW-15 is the resident of the village and he is.
D acquainted with the appellant. In his cross-examination,
he admitted that during investigation of the case the Police
had recorded his statement and later on Special Judicial
Magistrate also recorded his statement under Section 164
Cr.P.C. along with four or five more witnesses. He has
E denied having made statement to the Special Judicial
Magistrate to the extent that on the day of incident he saw
the appellant armed with a gun and giving knife blows
on the person of 'S' and her mother 'N'. [para 33,34 and
35) [187-8, C, D, E, F, G: 188-A, 8, CJ
F
3.3 The Investigating Officer (PW 18) and the Special
Judicial Magistrate (PW 17) both have categorically stated
that they had correctly recorded the statements of PWs
1, 2, 3 and 15 under Section 161, Cr.P.C. and Section 164,
Cr.P.C. respectively. The testimony of the Investigating
G Officer and Special Judicial Magistrate in no
circumstances and for no good reason could be
disbelieved and discredited and their evidence has to be
accepted in its entirety without any hesitation. Merely
because PWs 1, 2, 3 and 15 did not support the
H prosecution case when they were examined in the Court,
-
i
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
165
MAHARASHTRA
that would not, in the circumstances, lead to the A
conclusion that the appellant was innocent. [Para 36] (188F, G; 189-A]
4.1 As regards non-examination of independent
witnesses who probably witnessed the occurrence on the
road side, suffice it to say that testimony of PW-8, an eyeB
witness, who received injuries in the occurrence, if found
to be trustworthy, cannot be discarded merely for nonexamination of the independent witnesses. It is wellsettled that in such cases many a times, persons are not
inclined to became witnesses for variety of reasons. The C
High Court has rightly held that the reasons given by the
trial Judge for discarding and disbelieving the testimony
of PWs-4, 5, 6 and 8 were wholly unreasonable, untenable
and perverse. [para 39] [190-A, B, C] ·
4.2 The testimony of the eye-witnesses including the D
injured eye-witness PW-8 finds complete corroboration
from the medical evidence in regard to the severe injuries
sustained by deceased at the hands of the appellant with
knife (Art. 20), the weapon of offence used in the
commission of the crime. [para 42] [192-F, G]
E
5.1 So far as the arrest of the accused is concerned,
he was arrested by the Investigating Officer in the
presence of PW-9 and PW-13. Simply because PW 13 in
the past had also appeared as Panch witness in the Court,
he cannot be branded as habitual Panch witness nor earl
F
it be said that in the instant case he blindly signed the
Panchnama. PW-9 is a Legal Practitioner and he has fully
supported preparation of the arrest panchnama of the
appellant. The arrest Panchnama (Ext. 41) would reveal
that stains of blood were noticed at the shirt of the G
accused when he was arrested. It also finds mentioned
in the Panchnama that the appellant had a cut injury on
his right little finger and blood was oozing out of the said
injury. This has been corroborated by the medical report
of the doctor (PW 10). The appellant has not explained
H
166
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A the existfrnce of cut injury on his right little finger.
[Para 45] [195-D, F, G; 196-A, B]
5.2 In the instant case, no ground is made out to
disbelieve and discard the evidence of PWs-4, 8 and 16,
who are injured and non-injured eye-witnesses and
8 whose evidence is corroborated by other oral and
documentary evidence including the medical evidence.
Therefore, non-explanation of simple injury on little finger
of the right hand of the appellant by the prosecution is
insignificant in the teeth of the overwhelming, cogent,
C consistent and trustworthy evidence appearing on record
against the appellant for holding him guilty of the
commission of the offence. [para 46] [197.-D, E, F]
Krishan & Ors. v. State of Haryana (2006) 12 SCC 459 -
0
relied on.
Raghu Nath v. State of Harnaya & Anr. (2003) 1 SCC
398 - held inapplicable.
7. Simply because there are some minor
discrepancies in the evidence of witnesses which are of
E no consequence to the true genesis of the case and that
some evidence has not been adduced by the prosecution,
though might have been available, the same would not
be sufficient grounds to hold that the appellant has been
booked in a false case. There is nothing on record brought
F by the appellant to show that it was quite possible that
the witnesses would spare the real culprit and implicate
him in a false case. On the basis of the entire evidence
elaborately discussed by the High Court, it cannot be held
that the appellant, has been framed on suspicion. [para
G 48) [198-E, F, G]
8.1 The High Court, on reappraisal and reassessment
of the entire evidence on record, came to the conclusion
that immediately after the occurrence a report came to be
H lodged to the Police Station against the appellant who has
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
167
MAHARASHTRA
,;...
been identified by PW-8, an injured eye-witness, and other A
non-injured eye-witnesses and further that the appellant
had strong motive to commit murder of the deceased with
malice towards PW-8-her husband, as well as her
deceased mother. [para 48) [198-C, D, E]
8.2 The interference made in the instant case by the
B
~ .--+-
High Court with the order of acquittal passed by the trial
Court was wholly justified and warranted. The findings
recorded by the High Court do not suffer from any manifest
error or improper and misappreciation of evidence on
record. The High Court has rightly held that the appellant c
is the real culprit and guilty of the offence punishable
under Section 302 of IPC. [para 49] [199-A, B]
State of Rajasthan v. Raja Ram (2003) 8 SCC 180;
Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 D
SCC 793; Ramesh Babula/ Doshi v. State of Gujarat (1996) 9
SCC 225; Jaswant Singh v. State of Haryana (2000) 4 SCC
484; State of Goa v. Sanjay Thakran & Anr (2007) 3 SCC
755; Prandas v. State AIR 1954 SC 36; Chandrappa v. State
of Karnataka (2007) 4 SCC 415 and Girja Prasad (Dead) by
E
Lrs. V State of M. P. (2007) 7 sec 625 - relied on.
Tota Singh & Anr v. State of Punjab (1987) 2 SCC 529;
Surajpa/ Singh v. State AIR 1952 SC 52 and Aher Raja Khima ·
v. State of Saurashtra AIR 1956 SC 217 - referred to.
Shea Swarup v. R. Emperor (1933-34) 61 IA 398 : AIR
F
.._,,,_
1934 PC 227 (2) - referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 545 of 2007.
From the final Judgment and order dated 9/3/2007 of the
G
High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
..
Crl. A. No. 198/1990
Sushil Kumar, Anmol Thakral and Meenakshi Kumar and
Aditya Kumar (for Chander Shekhar Ashri) for the Appellant.
H
168
SUPREME COURT REPORTS
[2008] 6 S.C.F\
A
Dr. Rajeev Masodkar (for Ravindra Keshavrao Adsure) for
the Respondent.
The Judgment of the Court was delivered by
LOKESHWAR SINGH PANTA, J. 1. The appellant has
B filed this appeal under Section 379 of the Code of Criminal
Procedure, 1973 (for short 'Cr.P.C.") read with Section 2(A) of
the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 read with Order 21 Rules XII to XXIX of
the Supreme Court Rules, 1966, against the judgment and order
c dated 09.03.2007 passed by the Division Bench of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur. By the
judgment under challenge, the High Court has partly set aside
the judgment dated 25.01.1990 of the learned Additional
Sessions Judge, Bhandara, passed in Sessions Trial No.44/
D 88 convicting the appellant under Section 302 of the Indian Penal
Code [for short 'IPC'] and sentencing him to imprisonment for
life and to pay a fine of Rs.1,000/- with default clause to suffer
further six months' R.I. The appellant, however, has been
acquitted for the offences punishable under Sections 307 and
324 of the IPC and Sections 25 and 27 of the Arms Act.
E
2. Brief facts, which led to the trial of the accused, are as
follows:-
The appellant-Mahesh and one Sunita were residents of
Bastarwari Ward, Paoni, Tehsil Paoni, District Bhandara. It was
F
alleged that they developed love-affair with each other when
they were studying in the school. The prosecution case was that
the marriage of Sunita was arranged with Sanjay, a resident of
Nagpur. Before the marriage of Sunita could take place with
Sanjay, the appellant had gone to the house of Sanjay and
G disclosed the fact of his past love-affair with Sunita. He also
threatened Sanjay to face with dire consequences if he would
marry with Sunita. Sanjay in the presence of his brother Manik
(PW-7) told the appellant that as the" Sakshagandha" Ceremony
had already taken place, he was left with no other option except
H to marry with Sunita. It was on 12.02.1988 when the marriage
-
1
..
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
169
MAHARASHTRA [LOKESHWAR SINGH PANTA, J.]
between Sunita and Sanjay took place at Nagpur. On A
27.03.1988, Sanjay and his wife Sunita both had gone to the
house of Nirmalabai for inviting the latter to attend the marriage
of the niece of Sanjay scheduled to take place.at Nagpur. They
...,_
had stayed for a night at the house of Nirmalabai. On the next
day, i.e. 28.03.1988, Nirmalabai, Sanjay (PW-8), his wife Sunita,
B
I --
Archana (PW-4) - niece of Sunita and Rupesh (PW-16), son of
the maternal uncle of Sunita, had gone towards the bridge side
of Wainganga River for evening walk. It was alleged that around
5.00 or 5.30 in the evening, the appellant along with his friend
Rajesh (PW-5) was seen by the above-said persons going on c
a motorcycle to Wainganga River bridge side. The appellant on
seeing Sanjay, his wife Sunita, Nirmalabai, PWs-Archana and
Rupesh at the site of the river, allegedly uttered "Safi Sunita
Yevdha Prem Asun Aaj Ekda Sudha Mazyakade Pahile Nahl'
to PW-Rajesh. The prosecution alleged that on the same day, D
the appellant had kept a gun and one bag at the house of
....
Laxmibai (PW-2) in the presence of Bilkish Begum (PW-3), a
neighbour of PW-2 on the pretext that he would collect these
articles in the evening for hunting purpose. The appellant and
PW-Rajesh returned to their respective houses in the evening.
E
After some time, the appellant armed with a gun and knife C'1me
back to the place of incident and fire shot in the back of Sanjay,
who, as a result of bleeding injury, uttered 'Are Bapre'and then
laid on the road side. Sunita and Nirmalabai both tried to extend
help to injured Sanjay, but the appellant came near them, pulled
Sunita's hair and stabbed her on vital parts of head, neck and
F
>·"'.
back. Sunita collapsed on receipt of severe injuries. Nirmalabai
tried to save her daughter Sunita, but the appellant struck knife
blows to Nirmalabai also. The appellant, on seeing the gathering
of people at the scene of occurrence, ran away leaving all the
three injured persons on the spot.
G
3. Prakash (PW-1 ), a private Medical Practitioner, who
...
lived nearby the place of occurrence, on hearing shouting of the
people, went to the spot. He spotted Sunita lying with bleeding
injuries on the road side. He also spotted Nirmalabai and one
H
170
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A man lying in injured condition at a little distance away from Sunita
PW-Prakash lifted Sanjay, Sunita and Nirmalabai into a
rickshaw and took them to the Government Hospital, Paoni,
where they were admitted by Dr. Laxman (PW-10), Medical
Officer. Sunita could not survive and succumbed to the injuries
B
in the evening around 7.15 p.m. Dr. Laxman sent a memo to the
Police Station, Paoni, regarding admission of the injured
~1
persons. PW-San jay and Nirmalabai were transferred to Medical
College, Nagpur, at about 7.45 p.m. for proper medical
treatment.
c
4. PW-Prakash at about 7.30 p.m. lodged a written
complaint (Ext. 28) at Paoni Police Station, on the basis of which
First Information Report bearing Crime No.34/1988 (Ext. 29)
was registered by PSI Dhimole (PW-18) under Sections 302
and 307 of the IPC. PW-Dhimole started investigation. He tried
D to get the dying declaration of Sunita and statements of injured
Sanjay and Nirmalabai recorded, but at the relevant time he
could not get the services of any Executive Magistrate readily
available for the purpose. The Investigating Officer conducted
inquest on the dead body of Sunita. He arrested the appellant
E on the same day at about 7.30 p.m. The appellant allegedly
made a disclosure statement to the Investigating Officer
expressing his willingness to point out the place where a gun
and one knife were concealed by him. The appellant took the
Police and the Panch witnesses, namely, Vithoba Khobragade
F
(PW-9), a Legal Practitioner, and Harihar Barsagade (PW-13)
to his house and got the weapons of offence recovered
ytherefrom. The articles were seized by the Investigating Officer
vide Panchnama (Ext. 43).
5. Dr. Laxman conducted the post mortem examination
G on the dead body of the deceased Sunita and recorded the
following injuries in Post Mortem Report (Ext. 62):-
1)
Incised wound 3 cm x 1 cm over left forehead.
..
2)
Incised wound 3 cm x 1 cm inter-scapular region to
H
right side.

172
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A
size of each injury was 1 cm x 1 cm edges of all the
said injuries were inverted. Black right all around the
injuries would of exit seen.
7. On examination of Nirmalabai, Dr. Laxman noticed the
B
following injuries on her person:-
a.
Incised wound/stab over left scapular region 2.5 cm
-
I
x 1 cm bleeding was present.
b.
Incised wound 7 cm x 1 cm over face right side lateral
to lateral angle of eye.
c
c.
Incised wound 2.5 cm x 1 cm over right hand above
little finger.
d.
Incised wound over right elbow joint 2.5 cm x 1 cm
Movements frees.
D
8. The Investigating Officer collected the post mortem
report (Ext. 62) of Sunita, her Injury Certificate (Ext. 54), Injury
Certificate of PW-Sanjay (Ext. 55) and Injury Certificate of PWNirmalabai (Ext. 56) respectively. At the Medical College
E Hospital at Nagpur, some pellets of gun fire were taken out of
the body of PW-Sanjay. The Investigating Officer collected
samples of nails of the appellant in the presence of Panch
witnesses and the same were sent to the Chemical Analyser.
9. After completion of the in'1estigation and after receipt of
F the post mortem report and the Injury Certificates of deceased
Sunita, PW-Sanjay and Nirmalabai and also the Chemical
,,..
Analyser's Reports (Ext. 99, Ext. 100 and Ext. 102) and Report
of Ballistic Expert (Ext. 101 ). PW-Dhimole submitted charge
sheet against the appellant in the Court of Chief Judicial
G Magistrate, Bhandara. The Chief Judicial Magistrate committed
the trial of the appellant to the Court of Sessions, Bhandara, as
the offences framed in the charge sheet were exclusively triable
..
by the Court of Sessions.
10. The trial of the appellant was conducted by the learned
H Additional Sessions Judge, who framed charges against the
MAHESH S/0.JANARDHAN GONNADE v. STATE OF
173
MAHARASHTRA [LOKESHWAR SINGH PANTA, J.]
~ ...
appellant for the offences under Sections 302, 307 and 324 of A
the IPC and for the offences under Sections 25 and 27 of the
Arms Act.
11. The prosecution examined as many as 18 witnesses
in support of its case. In the statement under Section 313 of
B
Cr.P.C., the appellant has denied his involvement in the crime.
) ....
He pleaded that the prosecution witnesses are inimical towards
him. He admitted that on the day of incident at about 5.00 to
5.30 p.m., he along with PW-Rajesh had gone on a motorcycle
towards river side for evening walk and thereafter they went to
a small hillock in the vicinity and stayed there for about 1 Yi c
hours. They kept motorcycle near one Hotel, where they had
taken tea and when they were walking on a small hill, they heard
sound <;>lblasting of cracker and thereafter they returned to their
respective houses. The appellant also stated that when he came
to his house, some people told that murder had taken place. D
'f
The defence of the appellant was that he was arrested on
.
suspicion by the Police on account of old quarrel with the
grandfather of deceased Sunita and he pleaded innocence.
12. The learned Additional Sessions Judge has E
disbelieved the testimony of the injured witnesses inter alia on
the grounds: (a) they are close relatives and also interested
witnesses besides they being untrustworthy because their
evidence did not find corroboration from any independent
witnesses tho11gh many people were present at the scene of
occurrence, yet none of them was examined by the prosecution,
F
.__.
(b) some of the important witnesses have turned hostile to the
pros·ecution and (c) the recovery of weapons of offence has not
been supported by the panch witnesses and, therefore,
recorded the judgment of acquittal of the appellant. Being
aggrieved, the State of Maharashtra preferred Criminal Appeal G
No.198/90.in the High Court of Judicature at Bombay, Nagpur
...
Bench. The Division Bench of the High Court scrutinized and
reappraised the entire oral and documentary evidence on
record and has come to the conclusion that the learned Trial
Judge has not properly appreciated the evidence on record and
H
174
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A therefore, the judgment was set aside and as a result thereof,
"1
the appellant has been held guilty for the offence of murder of
Sunita. The record shows that during the pendency of the trial,
Nirmalabai had died and, therefore, she could not be examined
as a witness and injuries sustained by her though sought to be
B proved through PW-Dr. Laxman, yet the High Court has noticed
that th1are was no evidence on record to prove the period of
.._ '
hospitalization of Nirmalabai and the nature of medical treatment
given to her by the doctor of Medical College at Nagpur. In the
circumstances, the appellant has been acquitted of the charge
c under Section 324 of IPC for causing injuries to Nirmalabai. As
regards the gunshot injuries caused to PW-Sanjay by the
appellant, the High Court has come to the conclusion that the
prosecution has not established that pellets extracted out of the
body of PW-Sanjay were corresponding to the pellets allegedly
D fired by the appellant from the gun recovered from him by the
Investigating Officer. No Medical Officer from Medical College,
Nagpur, who medically examined PW-Sanjay, has been
examined by the prosecution to prove injuries received by
Sanjay from fire arm. In these circumstances, the High Court
E
has given benefit of doubt to the appellant for an offence under
Section 307 of IPC and consequently, no offence under the Arms
Act as well has been found against the appellant. The appellant
has filed this appeal against his conviction and sentence
impos1~d upon him by the High Court for the murder of Sunita.
F
13. We have heard learned counsel for the parties who
have taken us through the oral evidence of the material witnesses
.-~
as well as the documentary evidence appearing on record.
14. Mr. Sushi! Kumar, learned senior Advocate appearing
for the appellant, first contended that the High Court committed
G grave error in interfering with the order of acquittal passed by
the Trial court, only because another view could have been taken
in the matter and the interference of the High Court in the context
of reversal of acquittal is against the well-established principles
laid down by this Court in a series of decisions. In support of
H this submission, reliance has been placed on the decisions of
MAHESH S/O.JANARDHAN GONNADE v. STATE OF
175
MAHARASHTRA [LOKESHWAR SINGH PANTA, J.]
.
__.
this Court in Tota Singh & Anr v. State of Punjab [(1987) 2 A
SCC 529] and State of Rajasthan v Raja Ram [(2003) 8 SCC
180]. We have gone through the above-said decisions. It is not
in dispute that this Court by a series of decisions has laid down
the parameters of appreciation of evidence on record and
jurisdiction and limitations of the Appellate Court while dealing B
,) --
with appeal against an order of acquittal. In the case of Tota
Singh v. State of Punjab (supra), it was held as under:- (SCC
p.532 para 6)
"6 .... The jurisdiction of the appellate court in dealing with
an appeal against an order of acquittal is circumscribed c
by the limitation that no interference is to be made with the
order of acquittal unless the approach made by the lower
court to the consideration of the evidence in the case is
vitiated by some manifest illegality or the conclusion
:1
recorded by the court below is such which could not have D
...
been possibly arrived at by any court acting reasonably
1
and judiciously and is, therefore, liable to be characterised
as perverse. Where two views are possible on an
appraisal of the evidence adduced in the case and the
court below has taken a view which is a plausible one, the E
appellate court cannot legally interfere with an order of
acquittal even if it is of the opinion that the view taken by
the court below on its consideration of the evidence is
erroneous."
15. In State of Rajasthan v. Raja Ram (supra), this Court
F
, .....
held that the golden thread which runs through the web of
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. G
The paramount consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice,
which may arise from acquittal of the guilty, is no less than the
conviction of an innocent. Further, it is held that in a case where
admissible evidence is ignored, a duty is cast upon the Appellate
H
176
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A
Court to re-appreciate the evidence in a case where the accused
~·
has been acquitted, for the purpose of ascertaining as to whether
any of the au~used committed any offence or not. The principle
to be followed by the Appellate Court considering the appeal
against the judgment of acquittal is to interfere only where there
B are compelling and substantial reasons for doing so. If the
impugned judgment is clearly unreasonable, it is a compelling
.(
reason for interference. These aspects were again highlighted
by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793]; Ramesh Babula! Doshi v.
c State of Gujarat [(1996) 9 SCC 225] and Jaswant Singh v. State
of Haryana [(2000) 4 sec 484] and same parameters were
reiterated in the latest judgment of this Court in State of Goa v.
Sanjay Thakran & Anr. ((2007) 3 SCC 755).
16. Though the above principles are well-established, a
D different note was struck in several decisions by this Court. It is,
therefore, appropriate if we consider some more leading
..
decisions on the point.
17. In Prandas v. State [AIR 1954 SC 36], the accused
E
was acquitted by the Trial court. The· ~rovincial Government
preferred an appeal which was allowed and the accused was
convicted for offences punishable under Sections 302 and 323
IPC. The High Court, for convicting the accused, placed reliance
on certain eye-witnesses.
F
18. Upholding the decision of the High Court and following
the proposition of law in Sheo Swarup v R. Emperor (1933T'
34)61 IA 398 : AIR 1934 PC 227 (2), a six-Judge Bench
speaking through Fazl Ali, J. unanimously stated: (Prandas case,
AIR p. 38, para 6)
G
"6. It must be observed at the very outset that we cannot
support the view which has been expressed in several
cases that the High Court has no power under Section
417, Criminal Procedure Code, to reverse a judgment of
acquittal, unless the judgment is perverse or the
H
subordinate court has in some way or other misdirected
MAHESH S/O.JANARDHAN GONNADE·v. STATE OF
177
MAHARASHTRA [LOKESHWAR SINGH PANTA, J.]
> 1'
itse/fso as to produce a miscarriage of justice."
A
(emphasis supplied)
19. In Surajpa/ Singh v. State [AIR 1952 SC 52], a twoJudge Bench observed that it was well-established that in an
appeal under Section 417 of the Cr.PC. (old}, the High Court B
I
+·
had full power to review the evidence upon which the order of
acquittal was founded. But it was equally well-settled that the
presumption of innocence of the accused was further reinforced
by his acquittal by the trial court, and the findings of the trial
court which had the advantage of seeing the witnesses and c
hearing their evidence could be reversed only for very substantial
and compelling reasons.
20. In Aher Raja Khima v. State of Saurashtra [AIR 1956
SC 217], the accused was prosecuted under Sections 302 and
447 IPC. He was acquitted by the trial court but convicted by
D
the High Court. Dealing with the power of the High Court against
an order of acquittal, Bose, J. speaking for the majority (2: 1)
stated: (AIR p. 220, para 1)
"It is, in our opinion, well settled that it is not enough for the
E
· High Court to take a different view of the evidence; there
must a/so be substantial and compelling reasons for
holding that the trial court was· wrong." (emphasis
supplied)
21. In Chandrappa v. State of Karnataka (2007) 4 SCC
F
.--.
415], on consideration of a catena of earlier decisions of this
j,
Court and Privy Council, the following. general principles
''
regarding powers of the Appellate Court while dealing with an
appeal against an order of acquittal emerge:
\
G
( 1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of
~~ -
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power
J
H
178
SUPREME COURT REPORTS
[2008] 6 S.C.R.
A
and an appellate court 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
compelling reasons", "good and sufficient grounds", "very
B
strong circumstance$", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
-<
i
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of
c
·the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
D
the accused. Firstly, the presumption of innocence is
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,
E
the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
( 5) If 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 trial court.
F
22. Again in a recent decision in Girja Prasad (Dead) by
Lrs. V State of M. P.