The State Of Maharashtra vs Prabhatkumar S/o. Laxminarayan Dube & Ors.

JUDGMENT : (PER : NIVEDITA P. MEHTA , J.)

Since both these appeals arise out of the common judgment and order dated 6 January 2010 passed by the learned Sessions Judge, Gadchiroli in Sessions Case No. 56 of 2007, whereby respondent Nos.2 to 4 in Criminal Appeal No. 81 of 2010 (original accused) came to be acquitted of the offences punishable under Sections 307 and 324 read with Section 34 of the Indian Penal Code (hereinafter referred to as “IPC”), therefore, these appeals were heard together and are being disposed of by this common judgment. Criminal Appeal No.81 of 2010 has been preferred by the original informant under the proviso to Section 372 of the Code of Criminal Procedure, whereas Criminal Appeal No.252 of 2010 has been preferred by the State challenging the said judgment of acquittal.

Briefly stated, the prosecution case is that the informant, PW-2, Gurumukhdas Lilaram Nagdeve, along with his son PW-3, Vijaykumar Gurumukhdas Nagdeve, was engaged in the business of running a rice mill at Desaiganj. According to the prosecution, there existed political rivalry between the informant and the accused. On 18 October 2006, at about 12.00 noon, a goods vehicle belonging to the informant allegedly dashed against a cyclist at Laxmi Talkies Road, Desaiganj. Although PW-3, Vijaykumar allegedly expressed his willingness to compensate the cyclist and amicably settle the matter, accused No.1 is stated to have instigated the cyclist not to compromise and instead lodge a police complaint, which ultimately led to an altercation between the parties.

It is the prosecution case that during the course of the altercation, all the accused, in furtherance of their common intention, assaulted PW-3, Vijaykumar with an iron rod and wooden sticks, causing injuries to him. When the informant attempted to intervene and rescue his son, he was also allegedly assaulted by the accused. The informant thereafter lodged the First Information Report at Police Station, Desaiganj, on the basis of which Crime No.45 of 2006 came to be registered for the offences punishable under Sections 307 and 324 read with Section 34 of the IPC.

During the course of investigation, the Investigating Officer visited the place of occurrence and prepared the spot panchnama, seized the blood-stained clothes of the injured as well as the clothes of the accused, recorded the statements of witnesses, effected the recovery of the alleged weapons of offence at the instance of the accused, obtained the medical and Chemical Analyser's reports and, upon completion of the investigation, filed the charge-sheet before the jurisdictional Magistrate. Since the offences alleged were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Gadchiroli, where charge came to be framed against all the accused for the offences punishable under Sections 307 and 324 read with Section 34 of IPC. The accused pleaded not guilty and claimed to be tried. In order to bring home the guilt of the accused, the prosecution examined eleven witnesses and relied upon the documentary evidence brought on record, including the First Information Report, spot panchnama, seizure and recovery panchnamas, medical certificates, Chemical Analyser's reports and other contemporaneous documents.

Upon appreciation of the oral and documentary evidence, the learned Sessions Judge found that the prosecution had failed to establish the guilt of the accused beyond reasonable doubt. The learned Trial Court observed that the genesis of the occurrence had not been satisfactorily established. The prosecution had failed to examine several material and independent witnesses, including the cyclist whose alleged accident had triggered the incident as well as the injuries sustained by accused No.1 remained unexplained. It is further observed that the medical evidence did not conclusively establish the alleged grievous injuries, and the recovery of the alleged weapons of offence was not free from doubt. The learned Trial Court also found that the prosecution evidence suffered from material inconsistencies, and on an overall assessment of the evidence, held that the prosecution had failed to prove its case beyond reasonable doubt. Consequently, the learned Sessions Judge acquitted all the accused of the offences punishable under Sections 307 and 324 read with Section 34 of the IPC.

the learned counsel for the original informant:

Mr. S.S. Hulke, learned Assistant Public Prosecutor, supported by Mr. M.P. Khajanchi, learned counsel appearing for the original informant, vehemently submitted that the impugned judgment of acquittal suffers from serious infirmities both on facts and in law and is liable to be set aside. It was contended that the learned Trial Court failed to appreciate the evidence in its proper perspective and erroneously concluded that the prosecution had failed to establish the offences punishable under Sections 307 and 324 read with Section 34 of the IPC beyond reasonable doubt.

The learned APP submitted that the testimony of the injured witness, PW-3 Vijaykumar Nagdeve, is cogent, natural, trustworthy and inspires confidence. He has categorically deposed regarding the participation of all the accused in the assault and has consistently stated that he was attacked with an iron rod and wooden sticks, resulting in serious injuries and loss of consciousness. It was argued that the evidence of an injured witness carries great evidentiary value and ordinarily deserves greater weight, particularly when there is no material brought on record to discredit his testimony.

It was further submitted that the evidence of PW-3 stands substantially corroborated by the testimony of the informant PW-2 Gurumukhdas, who himself is an injured witness. Both witnesses have consistently narrated the manner of the occurrence and attributed specific overt acts to the accused. Their evidence, according to the prosecution, remained unshaken during cross-examination, and except for bald suggestions, no material contradictions or omissions were elicited by the defence.

The learned APP further contended that the prosecution version receives independent corroboration from PW-6, Jagdish Dinkarrao Ramteke, an eyewitness to the occurrence, whose testimony lends assurance to the prosecution case. The learned Trial Court, however, failed to appreciate this corroborative evidence in its proper perspective.

It was further argued that the medical evidence adduced through PW-11, Dr. Nikesh Bawne fully supports the ocular testimony. The Medical Officer has deposed that Vijaykumar had sustained grievous injuries with suspected fracture, which is consistent with the nature of the assault alleged by the prosecution. The Trial Court committed a manifest error in discarding the medical evidence merely because the X-ray plates or Reports were not formally produced. According to the learned APP, such omission by itself could not have rendered the otherwise reliable testimony of the Medical Officer unacceptable.

The learned APP and the counsel for the informant further submitted that the Trial Court attached undue importance to minor discrepancies and trivial inconsistencies, which are natural in the testimony of truthful witnesses and do not go to the root of the prosecution case. It was contended that the findings recorded by the Trial Court are contrary to the weight of evidence on record and suffer from perversity, inasmuch as relevant evidence has been ignored while inconsequential discrepancies have been magnified.

It was further submitted that the cumulative effect of the ocular testimony of the injured witnesses, the independent eyewitness and the supporting medical evidence unmistakably establishes the guilt of the accused beyond reasonable doubt. The learned Trial Court, therefore, committed a grave error in extending the benefit of doubt to the accused and recording an order of acquittal. On these grounds, the learned APP and the learned counsel appearing for the informant prayed that the impugned judgment and order of acquittal be set aside and that the respondents be convicted and sentenced in accordance with law

Per contra, R.P. Joshi, learned counsel appearing for respondent Nos.2 to 4 in Criminal Appeal No. 81 of 2010 and respondent Nos. 1 to 3 in Criminal Appeal No. 252 of 2010 supported the impugned judgment and order of acquittal and submitted that the learned Trial Court has meticulously appreciated the entire oral and documentary evidence on record before recording the finding that the prosecution had failed to establish the guilt of the accused beyond reasonable doubt. It was submitted that the view taken by the learned Trial Court is a reasonable and possible view based on the evidence available on record and, therefore, does not warrant interference in an appeal against acquittal merely because another view may also be possible.

It was submitted that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. According to the learned counsel, the prosecution evidence suffers from material omissions, inconsistencies and improvements, rendering the version put forth by the prosecution wholly unreliable. It was argued that the learned Trial Court has assigned cogent and convincing reasons for discarding the prosecution evidence and extending the benefit of doubt to the accused.

The learned counsel further submitted that the genesis of the incident has been deliberately suppressed by the prosecution. Admittedly, the occurrence arose out of a sudden quarrel following an accident involving the informant's goods vehicle and a cyclist. In such circumstances, the possibility of exaggeration and false implication of the accused owing to the existing political rivalry between the parties cannot be ruled out. It was contended that the admitted political animosity provided sufficient motive for falsely implicating the respondents.

It was further argued that though the prosecution sought to establish the offence under Section 307 of the IPC, the evidence on record falls far short of establishing the essential ingredients of the said offence. There is no reliable evidence to indicate either the requisite intention or knowledge on the part of the accused to cause the death of the injured. The nature of the injuries, the circumstances in which the incident occurred and the evidence as a whole do not justify invocation of Section 307 of the IPC.

The learned counsel also invited attention to the evidence of the Medical Officer and submitted that the prosecution failed to produce the X-ray plates or the X-ray reports to substantiate the alleged fracture sustained by the injured. In the absence of the best medical evidence, the Trial Court was justified in drawing an adverse inference regarding the nature and gravity of the injuries. It was submitted that the medical evidence does not conclusively establish the prosecution version and, therefore, cannot be treated as corroborative of the ocular testimony.

It was further submitted that the evidence of the alleged eyewitnesses is not wholly reliable. The prosecution witnesses are closely related and interested witnesses, and their testimony was required to be scrutinized with greater caution. According to the learned counsel, the independent witness examined by the prosecution does not fully corroborate the prosecution case on all material particulars. The inconsistencies emerging from the evidence create a serious doubt regarding the manner of occurrence and the specific role attributed to each of the accused.

The learned counsel further argued that the learned Trial Court has rightly observed that the prosecution failed to prove the common intention of the accused so as to attract the provisions of Section 34 of the IPC. The evidence regarding the individual overt acts allegedly committed by each accused is vague and inconsistent, and therefore, the prosecution has failed to establish their joint liability.

It was further submitted that the presumption of innocence available to every accused stands further strengthened by an order of acquittal recorded by the learned Trial Court. Unless the findings of the learned Trial Court are shown to be manifestly illegal, perverse or wholly unreasonable, the Appellate Court ought not to interfere merely because another view is possible on the evidence available on record.

The learned counsel further submitted that the findings recorded by the learned Trial Court are based upon a proper appreciation of the evidence on record and are neither perverse nor contrary to law. According to him, the prosecution has failed to prove its case beyond reasonable doubt and the accused have rightly been extended the benefit of doubt. It was submitted that unless the findings recorded by the Trial Court are shown to be manifestly illegal or wholly unreasonable, this Court ought not to interfere with an order of acquittal in exercise of its appellate jurisdiction.

On these grounds, learned counsel appearing for respondent Nos.2 to 4 prayed that both the appeals, being devoid of merit, deserve to be dismissed.

We have heard the learned Assistant Public Prosecutor for the appellant - State, learned counsel appearing for the original informant and learned counsel appearing for respondent Nos.2 to 4 at considerable length. We have also carefully gone through the impugned judgment and order, the oral and documentary evidence adduced before the learned Trial Court and the entire record and proceedings of the case. Since the challenge in the present appeals is directed against an order of acquittal, it would be appropriate to first examine the evidence of the prosecution witnesses and the documentary evidence relied upon by the prosecution before considering whether the findings recorded by the learned Trial Court warrant interference in the exercise of appellate jurisdiction.

PW-1, Vilas Namdeorao Salve, has been examined as a panch witness. His evidence establishes that the Investigating Officer prepared the spot panchnama (Exhibit 21) at the place of occurrence as pointed out by the complainant and, on the same day, seized the blood-stained clothes of the complainant, injured and accused.

During his cross-examination, it has been brought on record that PW-1 was a Municipal Councilor belonging to the Bharatiya Janata Party and shared cordial relations with Kisan Nagdeve, the brother of the PW-2, who was also a Municipal Councilor. He further admitted that no written notice had been issued to him by the police for acting as a panch witness and that Kisan Nagdeve was present when the seizure panchnama were prepared and had accompanied him to the Court while deposing. Although the witness denied the suggestion that the panchnamas were prepared at the police station or that he had falsely supported the prosecution, the defence has attempted to question his independence by bringing on record his close association with the complainant's family. His evidence is, therefore, relevant primarily to the preparation of the spot panchnama and the seizure of the clothes, while the question of the weight to be attached thereto would have to be assessed in the backdrop of the admissions elicited during his cross-examination.

PW-2, Gurumukhdas Nagdeve is the first informant as well as an injured witness. His evidence primarily unfolds the genesis of the incident. According to him, upon receiving a telephonic call from his son, PW-3 regarding the altercation arising out of the alleged accident involving a cyclist, he immediately proceeded to the place of occurrence. He deposed that on reaching the spot, he found the accused assaulting his son with an iron rod and wooden sticks. When he intervened to rescue his son, accused No.1 allegedly attempted to assault him with an iron rod, resulting in an injury below his right eye, while the remaining accused assaulted him with wooden sticks. According to him, after the intervention of one Avinash Parshuramkar and the gathering of the public, the accused fled from the spot. Thereafter, considering the serious condition of Vijaykumar, both of them were shifted to the hospital, following which he lodged the report (Exhibit 35), on the basis of which the First Information Report (Exhibit 36) came to be registered.

During his cross-examination, the defence sought to establish previous political rivalry and strained relations between the parties by eliciting that his brother, Kisan Nagdeve, was an active political functionary and that accused No.1 had earlier been associated with him in publishing a weekly newspaper. The witness was also confronted with the defence case that Vijaykumar had, after the accident, brought labourers from the grain market and assaulted the accused and that the accused had, in turn, lodged a counter-report. He, however, denied all such suggestions and maintained that the accused alone were the aggressors.

PW-3, Vijaykumar Nagdeve, is the injured witness and the principal eyewitness to the occurrence. His testimony constitutes the substratum of the prosecution case. According to him, on the day of the incident, while proceeding towards the Grain Market, his goods vehicle accidentally dashed against a cyclist. Though he expressed his willingness to compensate the cyclist and settle the matter amicably, accused No.1 allegedly instigated the cyclist not to compromise, but to lodge a police complaint. He deposed that he thereafter informed his father over the telephone and, apprehending trouble, requested PW-6, Jagdish Ramteke, to accompany him to the spot. According to him, accused No.1 exhorted that he should be killed, whereafter he sustained injuries on his head and both hands and became unconscious. He further deposed that he was initially treated at the Rural Hospital, Desaiganj, and was thereafter referred for specialised treatment at Nagpur, where he underwent surgery.

During his cross-examination, the defence put forth a specific counter-version that, after the altercation with the cyclist, PW-3 had brought labourers from the Grain Market, assaulted the accused and, during the course of the scuffle, sustained injuries after falling into a roadside drain. Suggestions were also made that, owing to previous disputes between the parties, he had falsely implicated the accused. PW-3 denied the said suggestions in their entirety and adhered to the prosecution version.

PW-4, Vasantrao Murari Thakare, has been examined as a panch witness to prove the memorandum and recovery effected at the instance of accused No.1. He deposed that, while in police custody, accused No.1 expressed his willingness to produce the iron rod allegedly used in the commission of the offence and, pursuant thereto, led the police and panchas to the stated place from where the iron rod came to be recovered under the memorandum and seizure panchnamas. During his cross-examination, the defence questioned the genuineness of the alleged recovery and suggested that the memorandum and seizure panchanamas had not been prepared in the manner deposed by him. The witness denied the said suggestions.

PW-5, Rajkumar Shamrao Meshram, was examined to prove the memorandum statement (Exhibit 42) and the recovery of the wooden stick allegedly made at the instance of accused Prakash Dubey under seizure panchanama (Exhibit 43). During his cross-examination, he admitted that accused Prakash was already in police custody when he reached the police station and that he had signed both the memorandum and seizure panchanamas at the police station itself. Though he denied the defence suggestion that no disclosure statement was made or recovery effected, the aforesaid admissions assume significance while appreciating the genuineness of the alleged discovery under Section 27 of the Evidence Act.

PW-6, Jagdish Dinkarrao Ramteke, was examined as an independent eyewitness. He deposed that, on Vijaykumar's request, he accompanied him to the place of occurrence where he allegedly witnessed accused No.1 armed with an iron rod and the remaining accused armed with wooden sticks assaulting PW-3. According to him, when PW-2 intervened, he too was assaulted by the accused. He further stated that the weapons were brought from the office of the accused situated adjacent to the place of occurrence.

During cross-examination, PW-6 admitted that he had not witnessed the incident involving the cyclist and that the complainant's truck was not present when he reached the spot. Though he denied the defence suggestions that PW-3 was the aggressor or had sustained injuries by falling, he could not explain why certain facts deposed before the Court did not find place in his police statement. Being the only independent eyewitness examined by the prosecution, his testimony assumes considerable significance and is required to be appreciated in conjunction with the evidence of the injured witnesses and the surrounding circumstances.

PW-7, Homraj Shriram Neware, was examined to prove the memorandum statement (Exhibit 46) and recovery of the wooden stick allegedly made at the instance of accused Harish Dubey under seizure panchnama (Exhibit 47). In his cross-examination, he admitted that accused Harish was already in police custody when he reached the police station and that the memorandum panchnama was prepared there itself. He denied the defence case that no disclosure statement or recovery had taken place. The evidentiary value of the alleged recovery is required to be considered in the light of these admissions.

PW-8, Bhanudas Wasudeorao Pidurkar, the then Police Sub-Inspector attached to Police Station, Desaiganj, was the Investigating Officer who conducted the initial investigation. He proved the registration of Crime No.45 of 2006 on the basis of the oral report (Exhibit 35) lodged by the PW-2, preparation of the spot panchanama (Exhibit 21), seizure of the blood-stained clothes of the complainant and the injured under Exhibits 22 and 23, arrest of the accused, seizure of their clothes under Exhibits 24 to 26 and the recovery of the iron rod at the instance of accused Harish Dubey pursuant to the memorandum and seizure panchanamas (Exhibits 39 and 40). He further stated that, after carrying out the initial investigation, the investigation was handed over to PSI Pardhi.

During his cross-examination, PW-8 admitted that accused Prabhatkumar had sustained injuries and was referred by the Medical Officer to the General Hospital, Gadchiroli. He, however, expressed his inability to state whether accused Prabhatkumar had lodged a report against the complainant and his son regarding damage caused to the articles in the office of the weekly newspaper "Trikalnetra". He denied the defence suggestions that the alleged recovery was fabricated or that the investigation was influenced by political pressure.

PW-9, Yogesh Laxman Pardhi, conducted the further investigation. He proved the alleged recoveries of the wooden sticks at the instance of accused Prakash and Harish Dubey, forwarding of the seized weapons for medical opinion, dispatch of the muddemal articles to the Chemical Analyser and the filing of the charge-sheet. Though the defence challenged the genuineness of the recoveries and alleged that the investigation was influenced by political pressure, PW-9 denied the said suggestions. The evidentiary value of the recoveries and the investigation shall be considered while analyzing the prosecution case as a whole.

PW-10, Fakira Madguji Kannake is a formal witness who proved the forwarding of the sealed muddemal articles to the Chemical Analyser under Exhibit 54. His testimony remained unchallenged in cross-examination and establishes the transmission of the seized articles for forensic examination.

PW-11, Dr. Nikesh Keshav Bawne, was examined as the Medical Officer who medically examined PW-2 and PW-3 on the date of the incident. Upon examining PW-3, he found a lacerated wound on the head, a contusion on the left forearm and a contusion over the right thumb, all caused by a hard and blunt object. According to him, the injuries to the left forearm and right thumb involved suspected fractures and were grievous in nature. He referred Vijaykumar to the General Hospital, Gadchiroli, for further treatment and proved the injury certificate and the final MLC report.

PW-11 further deposed that, on the same day, he examined PW-2 and noticed a lacerated wound on his right cheek and a contusion over his back, both caused by a hard and blunt object. He proved the injury certificate issued in respect of PW-2.

During his cross-examination, PW-11 denied the suggestion that the injuries sustained by PW-3 could have been caused by a fall on a hard and blunt surface or that the final MLC report had been issued without referring to the relevant medical papers. He, however, admitted that the injuries sustained by PW-2 were simple in nature.

Having discussed the evidence adduced by the prosecution, it is now necessary to examine whether the findings recorded by the learned Trial Court warrant interference in an appeal against acquittal. It is well settled that though the Appellate Court possesses full power to re-appreciate the evidence upon which an order of acquittal is founded, interference is justified only when the conclusions recorded by the learned Trial Court are manifestly erroneous, perverse or wholly unsustainable. If the view taken by the learned Trial Court is a reasonably possible view based on the evidence on record, the Appellate Court would ordinarily be slow in substituting its own view merely because another view is also possible.

The prosecution case principally rests upon the testimony of PW-2, PW-3 and PW-6. There can be no quarrel with the proposition that the testimony of an injured witness ordinarily carries considerable evidentiary value, as his presence at the scene of occurrence is seldom in dispute. Equally, the evidence of such a witness is not beyond judicial scrutiny. The Court is required to examine whether the ocular version is consistent with the surrounding circumstances, inspires confidence and is free from material infirmities. Upon an independent re-appreciation of the evidence on record, we find that certain aspects of the testimony of the principal prosecution witnesses require closer scrutiny, which are discussed hereinafter.

The first aspect which merits consideration is whether the prosecution has succeeded in establishing the true genesis of the occurrence. Upon a careful re-appreciation of the evidence on record, we find that the prosecution has not succeeded in presenting a complete and cogent account of the genesis of the occurrence. Admittedly, the incident did not arise spontaneously. The prosecution case itself is that the incident originated from an altercation following the alleged collision of PW-3’s goods vehicle with a cyclist. Significantly, PW-3, in his cross-examination, admitted that accused No.1 had not uttered anything until the settlement with the cyclist was completed. This admission assumes significance because, according to the prosecution itself, accused No.1 thereafter instigated the cyclist to lodge a report, which allegedly triggered the subsequent quarrel. The said admission, therefore, creates a doubt regarding the allegation of instigation i.e. the prosecution version as to the immediate cause of the occurrence and further weakens its attempt to establish the true genesis of the incident.

Despite this, the prosecution neither examined the cyclist nor offered any explanation for his non-examination. Equally, though the evidence on record indicates that several persons had gathered at the spot, no independent witness to the initial altercation has been examined. PW-6, who has been projected as an independent eyewitness, admittedly reached the place of occurrence only after PW-3 requested him to accompany him. His testimony, therefore, does not throw any light on the circumstances in which the quarrel commenced or on the conduct of the parties immediately preceding the alleged assault. Further, though PW-6 has been projected as an independent eyewitness, his own evidence discloses that he was serving in the Agricultural Produce Market Committee where PW-2 was a Director. While this circumstance, by itself, is not sufficient to discard his testimony, it cannot be ignored while assessing the degree of independence attached to his evidence. His testimony, therefore, does not furnish the kind of independent corroboration which the prosecution seeks to derive from it.

The prosecution version regarding the manner in which the accused allegedly procured the weapons also does not inspire confidence. According to PW-3, the accused first went to their office, brought the alleged weapons and thereafter distributed them amongst themselves before assaulting the complainant party. The normal human conduct expected in such a situation has not been explained by the prosecution. This circumstance, though not decisive by itself, lends support to the view taken by the learned Trial Court that the prosecution version is not wholly free from doubt.

It is true that the evidence of an injured witness cannot be discarded merely because he is an interested witness. However, where the prosecution withholds the testimony of the most natural witnesses to the genesis of the occurrence, the Court is required to scrutinise the evidence of the interested witnesses with greater care. The non-examination of the cyclist and other independent witnesses assumes significance, particularly when the defence has set up a specific counter-version regarding the manner in which the incident occurred. The Hon'ble Supreme Court in Parminder Kaur alias P.P. Kaur alias Soni v. State of Punjab, (2020) 8 SCC 811, has observed that where a material witness, who could unfold the genesis of the occurrence or fill an evident gap in the prosecution case, is available but is not examined without satisfactory explanation, the prosecution case suffers from a material deficiency and an adverse inference may legitimately be drawn against it. The relevant paragraph No. 16 of the said judgment has been reproduced below -

Another circumstance which assumes significance is the non-examination of material witnesses who were admittedly available to the prosecution. The evidence of PW-2, PW-3 and PW-6 consistently indicates that the incident occurred on a public road during daytime and that several persons had gathered at the spot. PW-2 has also deposed that one Avinash Parshuramkar intervened and attempted to pacify the quarrel. However, neither the said Avinash Parshuramkar nor any other independent person present at the scene has been examined by the prosecution.

Ordinarily, the prosecution is not expected to examine each and every witness cited during the investigation. At the same time, where the occurrence takes place in a public place and independent witnesses are admittedly available, the omission to examine such witnesses, without any explanation, assumes significance, particularly when the prosecution case rests substantially upon the testimony of interested and related witnesses. The testimony of PW-2 and PW-3 cannot be discarded merely on account of their relationship with each other. Nevertheless, in the absence of corroboration from the independent witnesses who were available, their evidence requires careful scrutiny.

The learned Trial Court has taken note of this omission while extending the benefit of doubt to the accused. Having independently appreciated the evidence, we are of the view that the learned Trial Court was justified in treating the non-examination of the material independent witnesses as one of the circumstances creating doubt about the prosecution version. Though this circumstance may not be decisive in isolation, it certainly assumes importance when considered cumulatively with the other infirmities emerging from the prosecution case.

Another important circumstance, which cannot be overlooked, is that the prosecution has not satisfactorily explained the injuries sustained by accused No.1. The evidence of PW-8, the first Investigating Officer, clearly indicates that accused Prabhatkumar was medically examined and was referred by the Medical Officer to the General Hospital, Gadchiroli, for further treatment. This circumstance unmistakably indicates that the accused had also sustained injuries during the same transaction.

The prosecution witnesses, however, have consistently projected the accused as the sole aggressors and have offered no explanation whatsoever as to how accused No.1 sustained the injuries. On the contrary, the defence has consistently put forth the case that, following the altercation with the cyclist, PW-3 brought labourers from the Grain Market who assaulted the accused, resulting in a free fight. Though the prosecution has denied the said defence, the injuries sustained by the accused remain an admitted circumstance on record. In these circumstances, where the occurrence appears to have arisen out of a mutual fight or scuffle between the rival groups, the omission of the prosecution to explain the injuries sustained by the accused assumes greater significance.

It is true that every failure on the part of the prosecution to explain the injuries sustained by the accused would not necessarily be fatal to its case. However, where the injuries appear to have been sustained during the same occurrence and the defence version cannot be said to be inherently improbable, we are of the opinion that such omission assumes considerable significance while appreciating whether the prosecution has presented the true and complete version of the incident. The Hon'ble Supreme Court in Lakshmi Singh and Ors. Vs. State of Bihar, (1976) 4 SCC 394, has observed that where the prosecution fails to explain the injuries sustained by the accused in the course of the same occurrence, particularly where the defence has offered a competing version of the incident and the prosecution evidence is that of interested or inimical witnesses, such omission assumes considerable significance. The said observation is reproduced as under:

This Court cannot lose sight of the fact that the prosecution is expected to present the entire occurrence in its true perspective. The omission to explain the injuries sustained by accused No.1, despite the evidence of the Investigating Officer acknowledging their existence, inevitably assumes relevance while assessing the overall credibility of the prosecution case. This circumstance, when considered along with the non-examination of the material witnesses discussed hereinabove, reinforces the view taken by the learned Trial Court and cannot be brushed aside as inconsequential.

The prosecution has also relied upon the recoveries of the alleged weapons of offence under Section 27 of the Indian Evidence Act. The evidence in this regard consists of the testimony of the panch witnesses and the Investigating Officers, who have sought to establish the recoveries of one iron rod and two wooden sticks at the instance of the accused. However, the evidentiary value of these recoveries does not inspire complete confidence. As noticed by the learned Trial Court, there are discrepancies regarding the recovery of the iron rod and wooden sticks, including inconsistencies in the description of the weapons allegedly recovered and those forwarded for medical opinion and chemical analysis. The prosecution has also not been able to establish a clear and cogent nexus between the recovered articles and the injuries sustained by the victims.

It is well settled that a discovery under Section 27 of the Indian Evidence Act is essentially a corroborative circumstance and not substantive evidence by itself. Unless the prosecution establishes, through reliable and commission of the offence, such recovery cannot be accorded undue weight. In the present case, the recoveries, viewed in the backdrop of the discrepancies noticed above and the overall evidence on record, do not materially advance the prosecution case or provide the complete assurance necessary to dislodge the view taken by the learned Trial Court.

The medical evidence adduced through PW-11 establishes that PW-3 and PW-2 had sustained injuries on the date of the incident. The injuries found on PW-3 included a lacerated wound on the head and injuries on the left forearm and right thumb, which were opined to be grievous in nature, whereas the injuries sustained by PW-2 were admittedly simple. Thus, the factum of injuries sustained by the victims is not in dispute.

However, except the injury certificate and the final MLC report, the prosecution has not produced the X-ray plates, X-ray reports or examined the Radiologist to substantiate the opinion regarding the alleged fractures. It is also an admitted position that PW-3 was referred to the General Hospital, Gadchiroli and was subsequently treated at Chandak Hospital, Nagpur. Nevertheless, no medical record from either of the said hospitals has been brought on record. In the absence of the best medical evidence, the opinion of PW-11 regarding the alleged fractures remained unsupported by the contemporaneous medical record. The learned Trial Court, therefore, rightly observed that the prosecution had failed to satisfactorily establish the grievous nature of the injuries. Though the medical evidence establishes that PW-3 and PW-2 sustained injuries during the incident, it does not, in the facts of the present case, materially strengthen the prosecution case so as to dispel the doubts arising from the other deficiencies noticed hereinabove.

The evidence of PW-2 and PW-3 undoubtedly establishes that they sustained injuries during the course of the incident. However, the mere fact that the witnesses were injured does not relieve the Court of its duty to scrutinise their testimony in the light of the entire evidence on record. As discussed hereinabove, the prosecution has failed to examine the most natural witnesses to the genesis of the occurrence, has not satisfactorily explained the injuries sustained by accused No.1, and has also failed to derive substantial corroboration from the recovery and medical evidence. These circumstances assume significance while appreciating the testimony of the injured witnesses.

The defence has consistently projected a counter-version that, after the altercation with the cyclist, PW-3 brought labourers from the Grain Market and assaulted the accused, resulting in a free fight. Though the defence is not required to prove its version beyond reasonable doubt, the material brought on record is sufficient to probabilize such a defence and to cast a reasonable doubt on the prosecution version. In the absence of reliable independent corroboration, it would not be safe to hold that the prosecution has proved its case beyond reasonable doubt solely on the basis of the interested testimony of PW-2 and PW-3.

On an overall assessment of the evidence, this Court finds that the learned Sessions Judge has considered the material evidence in detail and assigned cogent reasons for recording acquittal. The conclusions drawn by the Trial Court cannot be termed perverse or unreasonable. The findings are based on appreciation of oral, documentary and medical evidence and represent a possible view of the matter. Therefore, applying the settled principles governing appeals against acquittal, no ground is made out for interference with the impugned judgment and order.

The submissions advanced on behalf of the appellants have received our anxious consideration. However, upon an independent re-appreciation of the entire evidence on record, we are unable to persuade ourselves to take a view different from that taken by the learned Trial Court. The prosecution evidence suffers from material deficiencies in establishing the genesis of the occurrence, withholding the testimony of material witnesses, explaining the injuries sustained by accused No.1 and furnishing satisfactory corroboration through the recovery and medical evidence. These circumstances, when considered cumulatively, create a reasonable doubt regarding the prosecution version.

It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view favourable to the accused deserves to be adopted. In the present case, the view taken by the learned Trial Court is not only a possible view, but is also supported by a proper appreciation of the evidence. No compelling or substantial reason has been demonstrated before us to justify interference with the order of acquittal. The Hon'ble Supreme Court in Ramesh and Anr. Vs State of Karnataka, (2024) 9 SCC 169, has reiterated the same. The relevant observation is reproduced as under:

In view of the foregoing discussion, we do not find any merit in either of the appeals. The impugned judgment and order dated 06.01.2010 passed by the learned Sessions Judge, Gadchiroli in Sessions Case No.56 of 2007 does not suffer from any perversity or illegality warranting interference by this Court. Hence, the following order is passed: