K.S. HEGDE, J.
1. This is an appeal by special leave against the decision of the High Court of Bombay setting aside the judgment of acquittal of the appellant by the trial court and convicting him under Sections 302, 326 and 324, Indian Penal Code.
2. The appellant and another person were tried before the Additional Sessions Judge, Greater Bombay, on as many as eight charges. The learned Sessions Judge disbelieving the prosecution evidence acquitted both the accused. The State of Maharashtra went up in appeal to the High Court against the acquittal of the 1st accused Mathai Methews who is the appellant herein. No appeal was filed against the acquittal of the 2nd accused.
3. The incident from which this appeal arises had taken place as about 9 or 9.30 p.m. on February 4, 1964, at Sewri in the city of Bombay. As a result of that incident one Appa Krishna died. PW 4 Purshottam sustained grievous injuries. PW 5., Thomas, sustained one minor injury. At the same time the appellant also received several injuries including a head injury.
4. In support of its ease, the prosecution examined as many as six eyewitnesses including the injured PWs 4 and 5. But the learned trial Judge was unable to accept their evidence. He came to the conclusion that the prosecution has not come forward with a true case; the witnesses examined in support of its case are partisan witnesses and they are unreliable. In appeal a Division Bench of the Maharashtra High Court differed from the learned Trial Judge and substantially accepted the prosecution case. We have now to see whether the conclusion reached by the High Court is sustainable on the basis of the evidence on record.
5. It is now well-settled that the power of an appellate court to review evidence in appeals against acquittals is as extensive as its power in appeals against convictions. It is also well-settled that before an appellate court can set aside an order of acquittal, it must carefully consider the reasons given by the trial court in support of its order and must give its own reasons to reject those reasons. If a finding reached by the ‘trial Judge cannot be said to be a unreasonable finding then the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record. It should bear in mind the presumption of innocence of the accused and the fact that the Trial Judge had the advantage of seeing and hearing the witnesses. In brief, the appellate court should not disturb an order of acquittal except on very cogent grounds. On an examination of the entire material on record we have come to the conclusion that the High Court was not justified in setting aside the order of the trial court.
6. We shall now proceed to give our reasons in support of our conclusion but before doing so we shall set out in brief the prosecution case as well as the defence version and the proved facts of the case.
7. PW 2 Jacob Anian and PW 3 Chacko and Papan live in room No. 5, Block No. 1, in labour camp at Sewri. On the evening of February 1, 1964, PW 2 and 3 along with PW 5 Thomas Abrahim proceeded to a restaurant near the office premises of the Malayali Association at Sewri, for tea. When they were passing in front of a volleyball ground they saw Accused 2 and some other persons playing volleyball. Then they got into the volleyball ground and demanded that they should also be allowed to play volleyball. To this Accused 2 and his companions objected. Thereafter the game was stopped; Accused 2 and his companions removed the net and started going out of the ground. At that, time Accused 2 was taking the ball in his hand. PW 3 tried to snatch the ball from his hand. Then there was an altercation between PW 3 and Accused 2. They exchanged blows. There the matter ended. On that evening at about 8 p.m. Accused 2 and his uncle Appellant to the room of PW 3 and there was home exchange of words between them and PW 3. At about 10-30 p.m. on February 3, 1964 i.e. two days after the first incident, Accused 2 and Ponnachan another uncle of his went to the room of PW 1. There they picked up a quarrel with PW 1 and assaulted him. The further case of the prosecution is that on the evening of February 4, 1964, when PWs 2, 3, 4, 5 and 9 were finding at the road-side at Sewri, the appellant, Accused 2 and several others name there. The appellant first hit PW 1 on his face. At this stage the deceased Appa Krishna gave fist blow to the appellant. Thereafter the appellant pulled out a knife from his pocket and stabbed Appa Krishna in the chest. On receiving that blow Appa Krishna fell down. When PWs 4 and 5 tried no assist Appa Krishna, they were also stabbed by the appellant. Later Appa Krishna died as a result of the injury sustained by him.
8. Now coming to the version of the accused, they do not seriously dispute the incident that had taken place on the evening and night of February 1, 1964 as well as on the evening of February 3, 1964. Their case is that having been infuriated by what had happened earlier PWs 2 and 3 got together their associates P.Ws 4, 5, 9 and 10 and the deceased on the evening of February 4, 1964. Thereafter PW 2 sent someone to fetch Accused 2. Accused 2 was afraid of meeting PW 2 and therefore he hesitated to go to PW 2's room. At that lime the appellant who had returned from Kerala that day was there in Accused 2's room. He told him that he should go and settle matters. He further told him that he would accompany him. When both of them went there, the deceased Appa Krishna hit the appellant on his head with iron rod. Seeing that Accused 2 ran away. Thereafter the appellant was kicked and trampled upon. He became unconscious as a result of the injuries received by him and later on he was removed to the K.E.M. Hospital.
9. It is undisputable that at the time of the occurrence the deceased had received a knife blow on his chest as a result of which he died and that PW 4 Purshottam had received two knife injuries : one on his shoulder and another on his side. It also proved that at that time PW 5 Thomas had received a minor cut injury. The version put forward by the accused offers no explanation for those injuries. It is equally true that during that incident the appellant had received a severe head injury which according to medical evidence was likely to have been caused either by a blow with an iron rod or with a stick. The X-ray examination of the lumbar spine of accused showed a chip fracture of 4th lumbar vertibra which according to Dr Shashikant Mehta (PW 14) would have been caused by kicking with shoes. As seen earlier, the prosecution evidence has no explanation for these injuries. Therefore it is clear that neither the prosecution nor the defence has come out with the true version. In such a situation the task of the Court is somewhat difficult.
10. Both the courts below, have come to the conclusion that the witnesses who speak to the occurrence are partisan witnesses. PWs 2 and 3 live in the same room. PW 10 Balam was living with PW 2 after the occurrence. PWs 4, 5, 9 and the deceased are proved to be the friends of PW 2. It is seen from the evidence of the prosecution witnesses that a large number of disinterested witnesses had witnessed the occurrence. Naturally it should be so because the occurrence had taken place in the middle of a street at Sewri, a crowded locality. But yet not a single disinterested witness has been examined in this case. This important circumstance was not borne in mind by the learned Judges of the High Court. Naturally PWs 2 and 3 must have been provoked by the incident that took place on the evening of February 3, P34. Therefore it is not unnatural that they were getting ready to retaliate. Admittedly neither PW 3 nor PW 4 attended their office on the day of the occurrence. This circumstance lends probability to the contention of the defence that they were busy getting together their friends to have it out with Accused No. 2 and his supporters. It may be noted that at about the time of the occurrence PWs 4, 5 and 9 came together in a taxi to Sewri on that evening. It is difficult to believe that meeting of all these persons was by mere coincidence. We get it from the evidence of PW 4 that even before they came to Sewri they knew about the previous day's incident. Hence the more reasonable inference is that PWs 2 and 3 got these people together at Sewri with a view to attack Accused 2 and his friends. This circumstance was also lost sight of by the High Court.
11. As mentioned earlier the incident took place at about 9 or 9.30 p.m. on February 4, 1964, but neither PW 2 nor PW 3 was available for being questioned by the police till the evening of February 6, 1964. Their story that being frightened by the incident they ran away to Bandup and came back to Sewri only on the evening of 6th is highly unbelievable. Obviously they were keeping themselves away from the police so as to get ready with their version of the incident;.
12. The prosecution version that the incident commenced with the appellant attacking PW 2 is not supported by any medical or other circumstantial evidence. It may be noted that the appellant was away in Kerala till the day of occurrence. The version given by the prosecution witnesses that he came there straight and began hitting PW 2 is an unnatural one. The prosecution witnesses have been giving different versions at different stages. Before the police, it appears their case was that more than live persons attacked PW 2 and his friends. This is clear from the charge-sheet and the charges framed. In court that version was watered down. There remained in the picture only Accused 1 and 2 with some unknown persons innocently walking behind them in the street. The trial court had listed the various contradictions found in the evidence of the eyewitnesses some of which are quite material. The trial court's conclusion that those witnesses are not reliable is not an unreasonable one. The probabilities of the case indicate that PWs 2 and 3 had gathered together on that evening their friends PWs 4, 5, 9, 10 and the deceased with a view to challenge Accused 2 and his friends and the incident took place because of the aggressive posture put forward by them. It is likely that when the appellant Accused 2 came to the scene, the appellant was beaten by an iron rod by the deceased and at that stage the appellant stabbed him on his chest. It is equally likely that the other persons were injured at the time when they were assaulting the appellant. If that was the real situation, which we think likely, then the appellant was well within his rights in inflicting the injuries found on the deceased, PWs 4 and 5.
13. As it is not possible to place any reliance on the testimony of the eyewitnesses, circumstances most favourable to the accused must be accepted. Under the circumstances the conclusion of the trial Judge that on the basis of the evidence on record it is unsafe to convict the appellant cannot be said to be a unreasonable conclusion. In a case of this nature it is difficult to sift falsehood from truth and therefore quite naturally the courts have to give the benefit of doubt to the accused. Only one knife blow was given to the deceased. If as mentioned earlier, the deceased was the aggressor and that he had assaulted the appellant with an iron rod then the appellant could have had a reasonable apprehension that there was danger to his life. Under those circumstances he had a right to defend himself against the persons who assaulted him. It is true that no plea of self-defence was taken but the facts disclosed clearly go to support such a plea. We have to take note of them.
14. In the result we allow this appeal and acquit the appellant. He shall be set at liberty forthwith.