Ganesh Bhavan Patel & ANR Vs.
State of Maharashtra  INSC 209 (18 October 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V. ((CJ) REDDY, O. CHINNAPPA (J)
CITATION: 1979 AIR 135 1979 SCR (2) 94 1978
SCC (4) 371
R 1981 SC 733 (9) R 1988 SC1158 (3) R 1989
SC2004 (30) RF 1992 SC 891 (24)
Indian Penal Code-s. 302-Trial court
acquitted the accused but the High Court convicted them-Powers of High Court to
re-assess evidence in an appeal from an order of acquittal-If main grounds for
acquitting accused are reasonable and plausible High Court should not disturb
The two appellants were charged with the
offence of committing the murder of the deceased. The prosecution relied mainly
upon the evidence of three witnesses, P.W. 2, P.W. 3 and P.W. 5 who claimed to
be eyewitnesses of the occurrence the trial court disbelieved those witnesses
and acquitted both the appellants. On appeal the High Court reexamined the
evidence and held that the infirmities noticed by the trial court in the
evidence of witnesses did not constitute good grounds for rejecting their
evidence, and reversing the order of acquittal, convicted both the accused
under s. 302 read with s. 34 I.P.C.
Allowing the appeal,
HELD: 1. The overall view of the evidence
taken by the trial court was reasonable, and the High Court was not, in view of
the settled principles on the subject, justified in reversing the same.
2. A long line of decisions, starting from
Sheo Swarup v. Kirug Emperor (61 I.A. 398) have firmly established that
although in an appeal from an order of acquittal the powers of the High Court
to reassess the evidence and reach its own conclusion, are as extensive as in
an appeal against an order of conviction, yet, as a rule of prudence. it should
always give proper weight and consideration to such matters as (i) the views of
the trial judge as to the credibility of the witnesses; (ii) the presumption of
innocence in favour of the accused, a presumption certainly not weakened by the
fact that he has been acquitted at the trial; (iii) the right of the accused to
the benefit of any doubt, and (iv) the slowness of an appellate court in
disturbing a finding of fact arrived at by a judge who had the advantage of
seeing the witnesses. Where two reasonable conclusions can be drawn on the
evidence on record, the High Court should, as a matter of judicial caution,
refrain from interfering with The order of acquittal recorded by the court
below. In other words, if the main grounds on which the court below has based
its order acquitting the accused, are reasonable and plausible and cannot be
entirely and effectively dislodged or demolished, the High Court should not
disturb the acquittal. [98 F-H] In the instant case, some of the main reasons
given by the trial court could not be effectively and rationally dispelled. One
of such reasons, which cast a cloud on the credibility of the prosecution
evidence, was that there was inordinate delay of several hours on the part of
the police in recording the statement which was treated as F.I.R. and further
undue delay in recording the statements of the alleged eye-witnesses by the
investigating officer, and no credible explanation of these delays was
Although these witnesses were or could be
available for examination when the investigating officer visited the scene of
occurrence or soon thereafter, their statements were recorded on the following
Such delay may not, by them, amount to a
serious infirmity in the prosecution case. But they may assume such a character
if there are circumstances to suggest that the investigator was deliberately
marking time with a view to decide about the shape to be given to the case and
the eye- witnesses to be introduced. A catena of circumstances which lend such
sinister significance to these delays, exists in the instant case, which
inevitably lead to the conclusion that the prosecution story was conceived and
constructed after a good deal of deliberation, in a shady setting highly redolent
of doubt and suspicion.
CRlMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 64 of 1974.
From the Judgment and order dated 2nd/4th
December 1972 of the Bombay High Court in Criminal Appeal No. 1492/70.
S. S. Javali, Amicus Curiae for Appellant No.
N. H. Hingorani and Mrs. K. Hingorani for
Appellant No. 2.
H. R. Khanna and M. N. Shroff for the
The Judgment of the Court was delivered by
SARKAR1A, J. This appeal is directed against a judgment, dated December 2/4,
1972, of the High Court of Bombay, whereby it converted the acquittal of the
appellants herein, into a conviction under Section 302 read with 34, Indian
According to the prosecution, Damji had
illicit relations with Smt. Bachibai, wife of Dana Ravji Patel, appellant, who
was original accused No. 1 at the trial. Dana was aware of these relations, and
about two to four months before the occurrence, he had threatened to kill the
deceased. Damji deceased, along with his wife and daughter, was living in a
room in Building No. 3, Bhaveshwar Nagar, Ghatkopar, Bombay.
On November 29, 1969, at about 7 p.m., the
deceased was returning home on his bicycle. When he entered the lane adjacent
to the said Building No. 3, both the appellants assaulted him with knives.
Pramila (P.W.2), and about 13 years, the daughter of the deceased was Sitting
on a charpoy in the compound of Building No. 3. This compound is enclosed by a
wall and is close to the lane. Another girl, 96 named Kuvarbai (P.W. 5), also
aged 13 years, was sitting on the Otla nearby. On being attacked, the deceased
cried out Bachao Bachao'. On hearing this, Pramila got up and ran to the place
of occurrence. On coming out of the compound gate, she saw both the appellants
causing injuries with knives to the deceased who was then lying on the ground.
His legs were in the gutter and the rest of the body on the road. Pramila asked
the assailants as to why they were assaulting her father. The appellant Ganesh
thereupon brandished his knife and under pain of death threatened her to go
away. Pramila then raised a hue and cry, on hearing which, Welji Harkha (P.W.
3), a Contractor, who was going in his car to his office in a nearby building,
was attracted to the spot.
Welji stopped his car and immediately
proceeded towards the scene of occurrence. On his approach, Dana, appellant ran
away carrying the knife with him, but Ganesh appellant was still there dealing
blows to the deceased. Welji caught hold of Ganesh `by his shirt, slapped and
upbraided him as to why he was assaulting the deceased. Ganesh got himself
released from Welji's grip and ran away in the Same direction in which his
companion had gone. Welji then went to his office in the hind street. His son,
Mohan was there. A large number of other persons were also there. He did not
whisper even a word about the occurrence to any of them, not even to his son,
Mohan. At his request, his son, Mohan, drove him in the car to his residence.
At the spot, Kuvarbai (P.W. 5), on seeing the
appellant assaulting the deceased, ran to the residential room of the deceased
and informed his wife, Santukbai (P.W. 6).
Thereupon, Santukbai rushed to the place of
occurrence and found her husband lying in a pool of blood. She, also, saw her
daughter, Pramila, standing there. Pramila and Santukbai, both pulled out the
deceased from the gutter to the road. Pramila then ran to her uncle, Kanjibhai
(P.W. 7), who was residing in the vicinity, and informed him about the
incident. Pramila returned to the spot along with Kanjibhai.
By that time, one Ravji (P.W. 1), who had
been betrothed to Pramila, had come to the spot. He learnt from Santukbai and
Pramila all about the occurrence. At about 7.30 p.m., Constable Shinde (P.W.
20), along with a Head Constable and another Constable, who were on patrol
duty, came to the scene. Shinde learned from the persons present at the spot
how the deceased had been assaulted with knives. Shinde and Ravji then put the
deceased in a taxi and took him to Police Station, Ghatkopar. Shinde informed
the Police Sub-Inspector Patil (P.W. 21), who was incharge of the I Police
Station at that time. The deceased was then taken to the Sion Hospital by
another Police Constable. Shinde and Ravji accompanied the deceased. On
reaching the Hospital, the doctor declared the de 97 ceased dead. At about 8.30
p.m., Ravji and Shinde returned to the Police Station. The Sub-Inspector then
recorded Ravji's statement and registered a case under Section 302 read with
34, Indian Penal Code.
The investigation was started by Inspector
Tipnis (P.W. 24) . Accompanied by Sub-Inspector Pathak (P.W. 22) and S. I.
Patil, the Inspector went to the Hospital. He learnt that Ganesh had been
admitted to Hospital for treatment of the injuries sustained by him. There, the
investigator arrested Ganesh and interrogated him. He also seized a
blood-stained Chaddi (Ex. 52) from the person of Ganesh and prepared a
Panchnama in this connection. Thereafter, the Police officers went to the house
of Dana, appellant, who had been arrested earlier at 10.45 p.m. by Constable
Shinde (P.W. 20). Under a Panchnama (Ex. 44), the Police seized blood-stained
clothes of Dana. They were produced by his wife, Bachibai (P.W. 12).
The prosecution case further is that Dana
appellant produced two knives (Ex. 17 and Ex. 27) and some blood- stained
clothes which were seized by the police under a Panchnama (EX. 44).
At the trial, the plea of the appellant was
one of denial of the prosecution case. Dana appellant, however, admitted that
there were improper relations between his wife and the deceased. His story was
that on the date of the incident at about 7 p.m., when he was proceeding along
the road in front of Building No. 3, the deceased came from behind on a bicycle
and slapped him on the neck. The deceased then left his bicycle near the gate of
the compound of Building No. 3, took a knife and got hold of Dana to strike
him. When Dana was struggling to get out of the clutches of the deceased, the
latter attempted to stab the former. But the blow attempted by the deceased,
missed its aim and grazed past the appellant's right arm, causing only a
scratch. The deceased then attempted another knife blow on the chest of Dana,
but Ganesh intervened and came to the rescue of Dana. In the meanwhile, the
second blow attempted by the deceased landed on the left shoulder of Dana
causing an injury. Dana then got free and ran away in the direction of Kailash
Ganesh told, more or less, the same story.
His version was that he had seen the deceased coming and giving a slap from
behind on the neck of Dana. On seeing this, he went to the rescue of Dana. By
that time, the deceased had already caused a stab wound on the left shoulder of
Dana. While grappling with the deceased, he (Ganesh) also received cuts on his
fingers from the knife held by the deceased. Ganesh further goes on to say that
after Dana had run away, four or five persons came there and one of them
assaulted 98 the deceased with a knife on the chest. When this scuffle between
the deceased and the stranger assailant started, the appellant ran away to the
house of Dana and advised his father to arrange for medical aid to Dana.
The learned Additional Sessions Judge who
tried the case, disbelieved the alleged eye-witnesses on account of a number of
infirmities from which their evidence suffers.
On appeal, the High Court re-examined the
evidence and came to the conclusion that the infirmities noticed by the Trial
Court did not constitute good grounds for rejecting the evidence of the
eyewitnesses. In the result, the High Court reversed the acquittal and
convicted both the accused under Section 302 read with 34, Penal Code, and
sentenced each of them to undergo imprisonment for life.
Hence this appeal.
The mainstay of the prosecution consisted of
the testimony of Pramila (P.W. 2), Welji Harkha (P.W. 3) and Kuvarbai (P.W. S)
who claimed to be eyewitnesses of the occurrence. Then, there was another set
of witnesses who claimed to have reached the scene of crime soon after its
commission when the deceased was still lying injured at the spot. These are Santukbai
(P.W. 6), Kamjibhai (P.W. 7), Ravji (P.W. 1) and constable Shinde (P.W. 20).
The dictum of the Privy Council in Sheo
Swarup v. King Emperor ('), and a bead-roll of decisions of this Court have
firmly established the position that although in an appeal from an order of
acquittal the powers of the High Court to reassess the evidence and reach its
own conclusions are as extensive as in an appeal against an order of
conviction, yet, as a rule of prudence, it should-to use the words of Lord
Russel of Killowen-'always give proper weight and consideration to such matters
as (1) the views of the Trial Judge as to the credibility of the witnesses (2)
the presumption of innocence in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted at the trial; (3) the right
of the accused to the benefit of any doubt; and (4) the slowness of an
appellate Court in disturbing a finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses.
Where two reasonable conclusions can be drawn
on the evidence on record, the High Court should, as a matter of judicial
caution, refrain from interfering with the order of acquittal recorded by the
Court below. In other words, in the main grounds on which the Court below has
based its order acquitting the accused, are reasonable 99 and plausible, and
cannot be entirely and effectively dislodged or demolished, the High Court
should not disturb the acquittal.
Keeping in mind these principles, with the
aid of Shri Javali, amicus curiae for appellant No. 2, we have carefully
examined the evidence of all the material witnesses and also the judgments of
the Courts below.
As noted by the Trial Court, one unusual
feature which projects its shadow on the evidence of P.Ws., Welji, Pramila and
Kuvarbai and casts a serious doubt about their being eyewitnesses of the
occurrence, is the undue delay on the part of the investigating officer in
recording their statements. Although these witnesses were or could be available
for examination when the investigating officer visited the scene of occurrence
or soon thereafter, their statements under Section 161 Cr. P.C. were recorded
on the following day. Welji (P.W. 3) was examined at 8 a.m., Pramila at 9.15 or
9.30 a.m., and Kuvarbai at 1 p.m. delay of a few hours, simpliciler, in
recording the statements of eyewitnesses may not, by itself, amount to a
serious infirmity in the prosecution case. But it may assume such a character
if there are concomitant circumstances to suggest that the investigator was
deliberately marking time with a view to decide about the shape to be given to
the case and the eyewitnesses to be introduced. A catena of circumstances which
lend such significance to this delay, exists in the instant case.
The first of these circumstances is that no
F.I.R. appears to have been recorded in this case before 3 A.M. Of the morning
of the 30th November. The prosecution have treated the statement of Ravji,
recorded in the course of investigation, as the F.I.R. Police Sub-Inspector
Patil who was in charge of the Police Station at the relevant time, wanted to
have it believed that he had recorded this statement of Ravji at 8.30 P.M. On
the 29th November But no less a witness than Ravji, himself, gave a direct lie
to Patil on this point. Ravji testified in unmistakable terms that his
statement was recorded in the Police Station at 12 midnight or 1 a.m. after the
completion of the Panchnama of the scene of offence. This Panchnama, according
to the prosecution, was completed by the investigators at 12.15 a.m., and
immediately thereafter, the Panchnama in regard to the production of the blood-
stained clothes of accused 1 was prepared and completed at about 12.45 a.m.
Ravji further stated that he might have signed his statement recorded by the Police,
at 3 a.m.
The Trial Court accepted the evidence of
Ravji in as much as he stated that his statement-which was treated as
F.I.R.-was recorded by the police between 12 midnight and 1 a.m. and was
completed when he signed it at about 3 a.m. The Learned Judges of the High 100
Court have disbelieved Ravji on this point, for the reason that he is a
"labour boy" about 18 years old, having "no sense of time",
and have preferred to accept the ipse dixit of S.I. Patil that Ravji's statement
was recorded at 8.30 P.M. With respect, the reasons given by the High Court for
brushing aside the testimony of Ravji on this point, appear to us, manifestly
unsustainable. The very fact that Ravji was a "labour boy", aged
about 18, far from being a reason for doubting his veracity on this point, was
a guarantee of the truth of his version. He was an unsophisticated witness who
was not fully aware or bosted about the twists and distortions introduced by
the investigating officer. He therefore, unwittingly blurted out the truth on
As against him, S.I. Patil, besides being
highly interested in the prosecution, was supposed to be aware that in order a
statement should be treated as F.I.R., it must be recorded first in point of
time before the commencement of investigation.
In this connection, the second circumstance,
which enhances the potentiality of this delay as a factor undermining the
prosecution case, is the order of priority or sequence in which the
investigating officer recorded the statements of witnesses. Normally, in a case
where the commission of the crime is alleged to have been seen by witnesses who
are easily available, a prudent investigator would give to the examination of
such witnesses precedence, over the evidence of other witnesses Here, the natural
order of priorities seems to have been reversed. The investigating officer
first recorded the statement of Ravji, in all probability, between 12.45 and 3
a.m. On the 30th, of Constable Shinde, at 4 a.m., and thereafter of Walji,
Kanjibhai (P.W. 7), Santukbai (P.W. 6), Pramila, and Kuvarbai, between 8 a.m.
and 1 p.m.
The investigating officers made a futile
attempt to explain away their conduct in not promptly recording the statements
of the alleged eyewitnesses. Inspector Tipnis and Sub-Inspector Pathak stated
that after the completion of the panchnamas at the spot, they made efforts to
contact the material witnesses, including Pramila, Santukbai and Kuvarbai.
Santukbai was actually questioned by the investigating officers, but they did
not then record her statement, because she was in an anguished state of mind
and was wailing.
With regard to Pramila and Kuvarbai, the
investigators said that these girls were then asleep, and therefore, they did
not think it proper to disturb them. Inspector Tipnis tried to give an
additional reason for delaying the examination of these witnesses till the
following day. He stated that he did not want the girls and the women-folk to
be present in the Police Station at that hour of the night.
The Trial 101 Judge rejected this
explanation, and we think rightly.
Santukbai herself had knocked the bottom out
of these 'explanations'. She stated that she was questioned by the
investigating officers during the night and she had answered all their
questions. Even if she was then in a state of anguish, it is not understandable
why the answers given by her to the questions of the investigating officer,
were not recorded. If she answered those questions, which, even according to
S.I. Pathak, she did, it could not be said that she was not in a position to
make a statement.
Ravji (P.W.1) further falsified the
'explanations' given by the investigating officers. He stated that Pramila,
Kuvarbai and Santukbai, all the three, were actually called out and questioned
during the night, by the investigating officers.
If the untruth of any aspect of these
'explanations' remained in the penumbral zone, hidden from judicial scrutiny,
the same was fully exposed by Constable Kakde (P.W. 18) of this very Police
In cross-examination, Kakde let the cat out
of the bag in as much as he stated that about 2.30 a.m. he had seen P.Ws.
Pramila, Kuvarbai, Santukbai, Kanjibai and Ravji in the Police Station.
A third circumstance to be noted in the
context, which enhances the suspicion about Welji, Pramila and Kuvarbai having
been introduced as 'eye-witnesses' at a late stage of the case, is, that their
names as such witnesses were not mentioned anywhere in the investigation record
before the morning of the 30th November. In this connection, it may be mentioned
that Ravji and Shinde reached the scene of crime soon after its commission.
Ravji came a few moments earlier than Constable Shinde. Damji was then alive
and lay injured at the spot. It was Constable Shinde who, accompanied by Ravji,
removed the injured in a taxi, first to the Police Station and from there to
the Sion Hospital.
At the trial. Shinde stated that on reaching
the Police Station, he had reported "the matter" to S.I. Patil, who
was incharge of the Police Station. Shinde did not say that he had mentioned
the names of the assailants of Damji or the witnesses to the Sub-Inspector on
this occasion. Further, Shinde did not vouch that Ravji had made any report
about the incident to S.I. Patil.
S.I. Patil (P.W. 21), also, did not say that
Shinde had told him that Damji had been, according to his information,
assaulted by the accused, Ganesh and Dana. Nor did Patil say that Shinde had
mentioned the names of the witnesses of the occurrence. All that Patil stated
on this point was that at about 7.30 a.m., Constable Shinde 102 came to the
Police Station and informed the witness that one person who had been assauled
by two others with knives, was lying injured in a Taxi outside, and that he was
accompanied by Ravji. In variance with Shinde's version, however, S.I.
Patil stated that he had questioned Ravji on
this occasion and the latter told him that Damji had been assaulted with knives
by Ganesh and Dana accused. Ravji directly contradicted S.I. Patil on this
point, and stated that on this occasion he was not at all questioned by S.I.
nor did the witness himself give any
information about the incident to the Sub-Inspector. Ravji had no motive to
tell a lie on this point. He was a "would-be" son-in-law of the
deceased. He was in no way hostile to the prosecution. on the contrary, he was
playing the active role of a "complainant" in this case. The Trial
Court was, fully justified in accepting his testimony on this point, in
preference to the bare oral word of S.I. Patil, particularly, when Ravji's
version was, and Patil's was not, consistent with the surrounding circumstances
and probabilities of the case.
The most important of these circumstances is
the conduct of S.I. Patil in not recording that "first information"
allegedly given by Shinde and Ravji on that occasion. S. I. Patil admitted that
he did not record the information given to him by Shinde and Ravji about the
occurrence on that occasion. The information, which he then received, was about
the commission of a cognizable offence.
It was, therefore, the duty of S.I. Patil
(who was incharge of the Police Station) to record it in accordance with the
provisions of Section 154 Cr. P.C., but he did not do so.
The explanation given by him was that it was
the practice of his Police Station not to record such information until a
message was received from the Hospital with regard to the condition of the
injured person. This explanation of Patil's failure to do what was his
statutory duty. was mere moonshine and was rightly repelled by the learned trial
It will bear repetition that the learned
Judges of the High Court have disbelieved Ravji and accepted S.I. Patil's bare
word of mouth, both with regard to the time of recording Ravji's statement and
Ravji's having informed Patil in the Police Station at 7.30 p.m. about the
accused being the assailants of the deceased, when Ravji and Shinde took the
injured there in a taxi. As noticed already, one of the reasons given by the
High Court for rejecting Ravji's testimony on this point, is that he was a mere
labour boy having no sense of time. With respect, this reason appears to us
manifestly, unsound. Labourers, masons and artisans who work on daily wages for
fixed hours, have an acute sense of time. There was nothing indefinite or
unbelievable in Ravji's version to the effect that his statement was recorded
by the Police 103 Sub-Inspector between 12 midnight and 1 a.m., while his
signature was obtained on that statement probably at 3 a.m.
No question was put to him to test his 'sense
of time'. Nor was any attempt made in re-examination to elicit a clarification,
if one was needed, with a view to reconcile this version of the witness with
that of the prosecution case, as laid by S.I. Patil, about the time of
recording Ravji's statement, treated as the F.I.R.
Thus considered in the light of the
surrounding circumstances, this inordinate delay in registration of the
'F.I.R.' and further delay in recording the statements of the material
witnesses, casts a cloud of suspicion on the credibility of the entire warp and
woof of the prosecution story.
Keeping in mind this all-clouding infirmity
the trial Judge scrutinised the evidence of the witnesses.
The first infirmity noted by the Trial Judge
in regard to Pramila's evidence was that her name or her presence at the scene
of offence was not mentioned in the record of the investigation till 9.15 or
9.30 a.m. of the 30th November.
Even Welji in his police statement recorded
at about 8 a.m.
On the 30th November, did not mention
Pramila's name or her presence at the scene of offence. Constable Shinde, while
reporting to S.I. Patil at the Police Station at about 7.30 p.m., did not
mention either the name of the accused or the eye-witnesses. Even in his
statement before the police alleged to have been recorded at about 4 p.m.,
Shinde did not mention that he had got the information from Pramila or that
Pramila wars present on the spot, when he reached there.
Apart from the vitiating circumstance that
Pramila, the 13 year old daughter of the deceased, was introduced by the
Investigator as a witness as late as 9.15 A.M. On the following day, the Trial
Judge noted that her conduct was unnatural and inconsistent with her being an
Pramila admitted in unmistakable terms that
on seeing accused 2 assaulting her father, she did not immediately raise an
alarm; she simply stated that on reaching the spot she asked the accused why he
was assaulting her father. The accused then pointed his knife towards her and
asked her to go away otherwise she would be killed. It was at this stage, that
she raised the outcry: "Bachao Bachao", on hearing which, Welji Harka
came to the spot. The l rial Judge who had the occasion to observe,- the
demeanour of Pramila in the witnessbox, thought this conduct on her part was
very unnatural because the normal instinctive reaction of such a child on
seeing her parent being attacked, should have been to raise an instant alarm to
attract the 104 inhabitants of the locality for help; and her shouting 'Bachao
Bachao' as she alleges-at a stage when the assault on her father was over, was
"very artificial" and appeared to have been introduced only for
making Welji's version that he was attracted by such shouts to the spot,
The third circumstance which in the opinion
of the Trial Judge, throws a cloud on the veracity of Pramila's evidence was
this. The occurrence took place at about 7 p.m.
which was not an unusual hour, in an
inhabited locality, there being several big residential buildings in the
vicinity, each having numerous one-room tenements. Building No. 3, in a room of
which Pramila lived with her parents, had three S storeys, and each storey had
10 or 12 rooms, each room being in the occupation of a different family. The
lane must have been frequented at that hour by the numerous residents of the
locality or passers-by If there was any out-cry by the victim or alarm by
Pramila, a large number of persons should have been attracted to the scene of
occurrence. But, according to Pramila and Santukbai, even after the attack was
over, only two or three strangers came there, who helped them in pulling out
the deceased from the gutter. According to Ravji, the number of the persons,
who had collected there, was four or five. None of those independent witnesses
whose attraction to the spot was probable, or whose collecting on the scene
immediately after the occurrence was admitted, was examined by the,
prosecution. Pramila's version that none other came on the scene of occurrence,
excepting Welji and Kuvarbai, was improbable.
The fourth infirmity noted by the Trial Court
was that Pramila was a highly interested witness and the amenability to
tutoring of a girl of such tender age, cannot be ruled out.
The Trial Judge further pointed out several
contradictions between what she stated at the trial and what she had earlier
stated in the Committal Court. These contradictions related to, (a) whether
accused 1 had run away and accused 2 alone was at the spot stabbing the
deceased when Welji came; (b) whether Kuvarbai was sitting on that very cot on
which Pramila was sitting, or was sitting at some distance on an Otla when the
shouts of 'Bachao Bachao' were heard from the scene of occurrence; and (c)
whether Santukbai, her mother came to the spot alone or whether she was then
accompanied by Pramila, and whether it was after the arrival of Shantukbai,
that Pramila want from the spot to fetch her uncle, Kanjibhai.
As regards the evidence of Kuvarbai (P.W.5),
the learned trial Judge reasoned that "if Pramila's presence itself at the
scene of crime 105 was doubtful, there was hardly anything that this girl
(Kuvarbai) would corroborate with regard to what Pramila had said," He
again stressed that Kuvarbai's statement was recorded by the police after a
delay of 40 hours and no satisfactory explanation of this delay was coming
forth. He further noted that Kuvarbai, also, a child hardly 13 or 14 year old,
and the possibility of her having been tutored could not be ruled out. He
further reasoned that Kuvarbai had, according to her own admission, seen the
incident for a brief moment over the compound wall from a distance of about 24
or 25 feet. It was 7 p.m. and the month was November.
There was no natural light at that time. The
street lamp, which was then on, was at a distance of about 35 feet from the
spot and the lamp-post was, according to the evidence of Ramrao Jadhav (P.W.
4), 25 feet high. According to Pramila, she caught only a momentary glimpse of
the backs of the assailants. She never saw their faces. She could not describe
the colour or the kind of the clothes that the assailants were wearing,
although she claimed to have seen them assaulting with knives. She could not,
however, say whether the knives were big or small. Taking into consideration
all these factors, the learned trial Judge concluded- and in our opinion,
rightly- that the chances of her "identifying clearly and without mistake,
the two assailants as the two accused before the Court, appears to be rather
meagre." A further reason given by the trial Judge for doubting Kuvarbai's
veracity was that in her statement before the police, she did not mention
accused 2 at all. Being a material omission, it amounted to a contradiction.
The last two infirmities noted by the trial
Judge ion Kuvarbai's evidence were weighty and could not be lightly overlooked.
We now come to the evidence of Welji Harkha
The story told by him at the trial was that
he was returning in his car, driven by himself, from the Municipal Garden on
Tilak Road, where he had gone, as usual, heart a discourse on the Geeta. The
witness was proceeding towards his office situated in Bhaveshwar Nagar,
Building No 3 in the third street, on Mahatma Gandhi Road. When he in his car
came in front of the residence of Damji in Building No. 3, he heard Pramila
shouting 'Bachao Bachao'. The witness stopped. By the time he stopped his car
and alighted, accused 1 ran away with a knife in hand, while accused 2 was
stabbing Damji with a knife. The witness went to accused 2, caught him by his
shirt and slapped him but the accused managed to free himself and run away.
As rightly pointed out by the trial Court,
the most glaring infirmity which vitiates Welji's evidence, was his unnatural
conduct. Welji was 8-817 SCI/78 106 the leader of the community of artisan that
lived in this locality. Welji admitted that Damji was his child-hood
acquaintance. Since his childhood, the deceased had worked as an artisan or
labourer for the witness in connection with the latter's business as a
contractor. They knew each other in Pakistan where they were residing before
their migration to India. But, on seeing the brutal assault on his child hood
acquaintance, or friend, Welji left him bleeding profusely in the gutter. He
did not even care to see whether Damji was dead or alive. He had a car with
him. He did not suggest or offer his car for removal of Damji to the Hospital,
nor did anything else to arrange for medical aid to the injured who according
to the other witnesses, was still alive. After seeing this, entire he callously
and non- challantly drove away to his office, without having even a look at the
dying man. According to the witness, on reaching his office he found there a
number of his workmen and his son, Mohan. He did not inform any of those
persons, not even his son, anything about the occurrence, much less did he ask
his son or any of those persons present there to inform the- police or to go
and arrange for medical aid or other assistance to Damji and his relatives. He
had a telephone in his office and also at his residence. Yet he did not give or
cause to be given and information about the crime to the police. The
explanation given by Welji for his indifferent and strange conduct was that he
had got frightened and upset and the persons present in his office had already
come to know about the occurrence. The explanation was manifestly untenable and
was, in our opinion, rightly repelled by the trial Court. After the assailants
had run away from the spot, there remained no cause for Welji to fear them. On
the departure of the assailants, it was expected of him to have at least a
glance at his childhood fellow to ascertain whether he was dead or alive.
According to him, his office was nearby in the third street. This means, he
reached his office only seconds after tine incident. This being the case, the trial
Court very rightly remarked that the news about the assault could not have
travelled faster than his car. Welji claims to be the leader of the labour
community, who were inhabitants of that locality. The least which was expected
from such a labour leader was, that he should arrange for the immediate removal
of his injured fellow-man to the Hospital.
We have therefore, no hesitation in agreeing
with the learned trial Judge that this strange conduct of the witness
"comes in the way of accepting his story as true".
Apart from the. fact that Welji's conduct was
strange and inconsistent with the normal conduct of an eye-witness, and the
inordinate delay in recording his statement by the police, his evidence suffers
107 from other material flaws, also. In his statement before the police, Welji
did not specifically name Pramila (P.W. 2) as person by whose shouts, he was
attracted to the scene of occurrence. In variance with what he stated at the
trial, his version before the police was that he had heard 'some ladies, (that
means more than one person), shouting 'Bachao Bachao'. Admittedly, he knew
Pramila's name prior to the occurrence. His version in the witness-box that he
was attracted to the spot on hearing the shouts of Pramila, was therefore, an
improvement deliberately made to fit in the prosecution story at the trial.
Again, Welji stated that when he caught hold
of accused 2, his pyjama got blood-stains upto a height of 5 or 6 inches. No
such pyjama was produced before the police or even in the Trial Court.
Questioned why he failed to do so, the witness stated that he did not want that
the accused should be involved at his instance as both the accused and the
victim were equal to him like his two eyes. This explanation was obviously
unacceptable, because at the trial, he did appear as a witness for the
prosecution and against the other party, that is, the accused.
Another admitted circumstance which blemished
the evidence of Welji, was that the father of accused 2 was in the employ of
the witness as a motor-driver for about seven or eight years. His services were
dispensed with by the witness about 2 months prior to the occurrence on the
ground of irregularity in service. The case put to him by the defence was that
the father of accused 2 had raised a dispute by demanding a higher pay.
Last but not the least, Welji was admittedly
operated upon for cataract, only a couple of months before the occurrence. His
eye- sight was weak. He was old and infirm and a heart-patient. He was a
Contractor and a man of means and had in his employment a motor-driver for 7 or
Moreover, his adult son who admittedly knew
car driving well, was available to drive the ear for him. In these
circumstances, the trial Court's observation, to the effect that it was most
unlikely that this old man of 69 years with a weak eye-sight and a weak heart,
would be driving his car himself at 7 p.m. when it was pretty dark, without
there being any emergency cannot be rejected out of hand.
In sum, we find that the over-all view of the
evidence taken by the trial Court was reasonable. While it is true that some of
the reasons given by the trial Court, if taken individually, do not appear to
be substantial or impeccable but taken in their totality, they certainly render
the evidence of the material prosecution witnesses unsafe to be acted upon.
All the infirmities and flaws pointed out by
the trial Court assumed importance, when considered in the light of the
all-pervading circumstance that there was inordinate delay in recording Ravji's
statement on the basis of which the "F.I.R." was registered) and
further delay in recording the statements of Welji, Pramila and Kuvarbai. This
circumstance, looming large in the background, inevitably leads to the
conclusion, that the prosecution story was conceived and constructed after a
good deal of deliberation and delay in a shady setting, highly redolent of
doubt and suspicion.
This all-vitiating circumstance, we say so
with great respect, could not be, and has not been, effectively dispelled by
the High Court, except by a blind acceptance of the ipse dixit of Sub-Inspector
Patil, on this point, in preference to the testimony of Ravji (P.W. 1), who
was, according to the prosecution, the prime mover of the gear.
For all the foregoing reasons, we allow this
appeal, set aside the conviction of the appellants and acquit them of the
charges levelled against them.
Before we part with this judgment, we will
place on record our appreciation of the valuable assistance rendered to us by
Shri Javali, who, though amicus curiae for appellant 2, has fully argued the
case on behalf of appellant 1, also.
P.B.R. Appeal allowed.