Shivaji Sahebrao Bobade & ANR Vs.
State of Maharashtra [1973] INSC 151 (27 August 1973)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
REDDY, P. JAGANMOHAN KHANNA, HANS RAJ
CITATION: 1973 AIR 2622 1974 SCR (1) 489 1973
SCC (2) 793
CITATOR INFO:
RF 1973 SC2773 (22,26) APL 1974 SC 606 (8) RF
1975 SC 241 (13) D 1977 SC 472 (27) RF 1981 SC1917 (16) F 1983 SC 867 (28) R
1984 SC1622 (152) R 1988 SC2154 (9) RF 1991 SC1842 (6)
ACT:
Code of Criminal Procedure (Act 5 of
1898)-Section 417Appeal against acquittal-Power of the High Court to
interfere-Norms for the exercise of the power.
HEADNOTE:
The dangers of exaggerated devotion to the
rule of benefit of doubt at the expense of social defence and to the soothing
sentiment that all acquittals are always good regardless of justice to the
victim and the community, demand special emphasis in the contemporary context
of escalating crime and escape. The judicial instrument has a public
accountability. The cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a thousand guilty men may go but one
innocent martyr shall not suffer is a false dilemma. Only reasonable doubts
belong to the accused. Otherwise any practical system of justice will breakdown
and lose credibility with the community. if unmerited acquittals become
general, they tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions against indicated
'persons' and more severe punishment of those who are found guilty.
Jurisprudential enthusiasm for presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and realistic. A balance has to
be struck between chasing chance possibilities as good enough to set the
delinquent free and chopping the logic of preponderant probability to punish
marginal innocents.
Certainly, in the last analysis, reasonable
doubts must operate to the advantage of the appellant. In India the law has
been laid on these lines long ago.
The appellants were charged under s. 302 read
with section 34 of the Indian Penal Code. The Sessions Court gave the accused
the benefit of doubt and acquitted them. On appeal the High Court after
elaborate consideration of the evidence and the grounds relied upon by the
trial judge to discard the prosecution case, reversed the findings and
convicted both the accused to imprisonment for life. Confirming the conviction
and sentence and dismissing the appeal,
HELD : This Court had ever since its
inception considered the, correct principle to be applied by the court in an
appeal against an order of acquittal and held that the High Court has full
power to review at large the evidence upon which the order of acquittal was
founded and to reach the conclusion that upon that evidence the order of
acquittal should be reversed. In law there are no fetters on the plenary power
of the_ appellate court to review the whole evidence on which the order of
acquittal is founded and, indeed, it has a duty' to scrutinise the probative
material de novo informed, however, by the weighty thought that the rebuttable
innocence attributed to the accused having been converted into an acquittal the
homage our jurisprudence owes to individual liberty constrains the higher court
not to upset the holding without very convincing reasons and comprehensive
consideration. The High Court's judgment survives this exacting standard.
[493F] Sheo Swarup v. King-Emperor, [1934] L.R. 61 I.A. 398, Sanwat Singh v.
State of Rajasthan. [1961] 3 S.C.R. 120 and Haibans Singh v. State of Punjab,
[1962] Supp. 1 S.C.R. 104, referred to.
[equere : Whether the punitive strategy of
the Penal Code sufficiently reflects the modern-trends in correctional
treatment and personalised sentencing.] 490
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 26 of 1970.
Appeal by special leave from the judgment and
order dated February 4, 15 February, 1969 of the High Court of Bombay in
Criminal Appeal No. 800 of 1967.
V. C. Parashar, for the appellants.
S. B. Wad and S. P. Nayar, for the
respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J. The murder of an old man in broad day light occurred on 26th
September, 1966, on a country road in Satara District and about seven years
later the fluctuating fortunes of the two young person’s charged with the crime
are being finally set at rest. One of the misfortunes of our criminal process,
which stultifies penal justice, is the counter-productive course of trial and
appeal and appeal, "at each remove a lengthening chain". The facts of
the case have been set out fairly fully in the judgments of the High Court and
the Trial Court and for the purposes of this appeal it is sufficient to set out
the story in its broad essentials.
The venue of the offence lies on a cart track
connecting the villages of Bibi and Ghadgewadi. The dramatis personae are P.W,
8. Sita Ram, a somewhat consequential man of village Kadamwadi, his quondum
servant, the deceased Hariba, the alleged assailants (accused) Shivaji and
Lalasaheb, the eyewitness Vilas (P. W. 5) who is the Assistant Gram Sewak of
the area, and others cast in lesser roles. There were some disputes between the
2nd accused and P.W. 8. Kadamwadi, the place of residence of these two persons,
is a little to the north of Ghadgewadi. About a mile to the south of Ghadgewadi
is Bibi which is 4 furlongs further south of Kadamwadi. This topography is not
very relevant except to follow the arguments accepted by the trial judge. The
quarrel between P.W. 8 and the second accused had been fostering since 1959
leading to reports to the police about threatened violence and a criminal case
which ended in the acquittal of latter. There was no love lost between P.W. 8
and the first accused either. For P. W. 1 0 (Bhagwan), one of the sons of the
former, and his father-in-law who is a close relation of the first accused,
were not on terms for reasons divergently given by the accused and Sita Ram
blaming each other. Thus it is more or less the admitted case, and both the
courts have found it established, that the accused and P.W. 8 were mutually at
loggerheads during the relevant time. The deceased was in the service of P. W.
8 for a long while and although about 10 or
12 years ago he had left the service, his loyalty lasted all the time with the
result that whenever Sita Ram requisitioned him he readily responded. In a
sense it is common case thai Hariba was a satellite of P. W. 8 and was, at
about the time of the occurrence, an inmate of the house: P. W. 5 too was staying
in P.W.8's house and must have been close to him as is evident from the
residential nexus. On the ill-starred day, Hariba and Vilas set out to go to
the weekly bazar at Bibi after taking their food at about 10 or 10-30 a.m. They
went to P.W. 5's office at Ghadgewadi and proceeded to Bibi where Hariba did
some shopping visiting P. W. 6 a shopkeeper and Shiva Ram, a carpenter. Later
both of them started 491 on their way back finishing their chores. The way lay
along a cart track from Bibi to Ghadgewadi. One Dada also had accompanied them.
of course, it was a day of fair and people from the neighbouring villages going
to and fro was not unnatural. While the three men were trekking back and were
at some distance from Ghadgewadi the two accused turned up from behind and
called out to Dada to stop. He obeyed and the other two went along. Thereupon
the accused are alleged to have run and overtaken the deceased and P.W. 5 at the
place known as Zamanacha Mala, Survey No. 8, Hariba, who was asked to stop, Was
set upon by the two assailants.
Accused No. 8 drew his knife and silenced P.
W. 5 by threat of stabbing if he broke into raising alarm. Soon after, the
second accused dealt knife blows on the deceased on the head and eye-brow and
accused No. 1 gave heavy strokes with a wire rope to which was attached a
leaden ball described as a hunter by the witnesses. Hariba fell on the ground
and the second accused kicked him as he lay. Dada was warned not to divulge and
P.W. 5, similarly cautioned, was conducted by the assailants up to a distance.
It is significant that at the time of the attack the accused angrily asked the
deceased whether he would still remain in the vasti (at Kadamwadi with Sita
Ram). According to the prosecution, P.W. 7 Zumber was going by the same cart
track from Ghadgewadi to his field for sowing and when he reached the spot was
told by the accused to divert the cart and not to speak out.
Dada left the place on being threatened and
Vilas accompanied the accused, having been intimidated against going to
Kadamwadi. A little later, one Balakrishna (P.W.2) accompanied by Ramu Sakharam
(P.W. 9) and others while on his way from Ghadgewadi side to Bibi stumbled on
the scene where Hariba was sinking. One Anna, father of Zumber (P.W.7) was, at
about the same time, coming from Bibi side.
'Ibis person asked helpless Hariba what
befell him and was told by the latter that Lala and Shivaya (the names are of
the accused) had beaten him. Shortly after, he breathed his last. P.Ws. 2 and 9
were present then. P.W. 2 proceeded to Bibi and reported the death of Hariba to
P.W. 15, Narayan, the police patil at Bibi, Ext. 8. The report was recorded and
was transmitted to the police, the First Information Report being Ext. 36.
Several witnesses were examined and documents
exhibited at the end of which the Sessions Court concluded : "In any case
a reasonable doubt is cast to the case of the prosecution and the benefit
thereof must be given to the accused. I,, therefore, hold that it is not proved
that the accused committed the offence". In his judgment, which adverts
with apparent care to all the relevant circumstances but suffers from a few
fatal flaws which we will refer to in due course, the trial judge negatived the
veracity of the prosecution version, but on appeal by the State a Division
Bench of the Bombay High Court, after elaborate consideration of the evidence
and the grounds relied upon by the trial judge to discard the prosecution's case,
reversed the findings. The conviction that followed was visited with a sentence
of imprisonment for life. The court wound up thus :
"Having thus given our anxious
consideration to the entire material on record and the evidence of the
eye-witnesses, 492 Vilas and Zumber, we are satisfied that the learned Judge
was not right in rejecting the prosecution evidence and acquitting the accused.
We, therefore, hold that on the evidence of the two eyewitnesses coupled with
the several circumstances pointed out above the prosecution has brought home
the guilt to the two accused beyond all reasonable doubt, and the only finding
in this case can be that the prosecution has proved that the two accused had
assaulted and attacked the deceased with knife and the hunter with the
lead-ball and caused injuries to him which resulted in his death. Both the
accused must, therefore, be held guilty of the offence under section 302 read
with section 34 of the Indian Penal Code." The two prisoners have
challenged the reversal of their acquittal in this Court.
Before dealing with the merits of the
contentions, we may perhaps make a few preliminary remarks provoked by the
situation presented by this case. An appellant aggrieved by the overturning of
his acquittal deserves the final court's deeper concern on fundamental
principles of criminal justice. The present accused, who have suffered such a
fate, have hopefully appealed to us for a loaded approach against guilt in
consonance with the initial innocence presumed in their favour fortified by the
acquittal that followed. We are clearly in agreement with this noble
proposition, stated in American Jurisprudence at, one time (not now, though) as
implied in the rule against double jeopardy, in the British system as a branch
of the benefit of reasonable doubt doctrine and in our own on the more logical,
socially relevant and modern basis, that an acquitted accused should not be put
in peril of conviction on appeal save where substantial and compelling grounds
exist for such a course. In India it is not a jurisdictional limitation on the
appellate court but a judge-made guideline of circumspection. But we hasten to
add even here that, although the learned judges of the High Court have not
expressly stated so, they have been at pains to dwell at length on all the
pointed relied on by the trial court as favourable to the prisoners for the
good reason that they wanted to be satisfied in their conscience whether there
was credible testimony warranting, on a fair consideration, a reversal of the acquittal
registered by the court below. In law there are no fetters on the plenary power
of the Appellate Court to review the whole evidence on which the order of
acquittal is founded and, indeed, it has a duty to scrutinise the probative
material de novo, informed, however, by the weighty thought that the rebuttable
innocence, attributed to the accused having been converted into an acquittal
the homage our jurisprudence owes to individual liberty constrains the higher
court not to upset the holding without very convincing reasons and comprehensive
consideration, In our view the High Court's judgment survives this exacting
standard.
Even at this stage we may remind ourselves of
a necessary social perspective in criminal cases which suffers from insufficient
forensic appreciation. The dangers of exaggerated devotion to the rule of
benefit of doubt at the expense of social defence and to the soothing sentiment
that all acquittals are. always good regardless of justice to the 493 victim
and .,the community,' demand especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has a public
accountability. The cherished principles or golden thread of proof beyond
reasonable doubt which runs thro' the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive
solicitude reflected in the attitude that a thousand guilty men may go but one
innocent martyr shall not suffer is a false dilemma. Only reasonable doubts
belong to the accused. Otherwise any practical system of justice will then
break down and lose credibility with the community. The evil of acquitting a
guilty person lightheartedly as a learned author(1) has sapiently observed,
goes much beyond the simple fact that just one guilty person has gone
unpunished. If unmerited acquittals become general, they tend to lead to a
cynical disregard of the law, and this in turn leads to a public demand for
harsher legal presumptions against indicated 'persons' and more severe
punishment of those who are found guilty. Thus too frequent acquittals of the
guilty may lead to a ferocious penal law, eventually eroding the judicial
protection of the guiltless. For all these reasons it is true to say', with
Viscount Simon, that "a miscarriage of justice may arise from the
acquittal of the ,guilty no less than from the conviction of the innocent.
.."-In short, our jurisprudential enthusiasm for presumed innocence must
be moderated by the pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between chasing enhance possibilities as
good enough to set the delinquent free arid chopping the logic of preponderant
probability to, punish marginal innocents. We have adopted these cautious in analyzing
the evidence and appraising the soundness of the contrary conclusions reached
by the courts below. Certainly, in the last analysis reasonable doubts must
operate to the advantage of the appellant. In India the law has been laid down
on these lines long ago.
This Court had ever since its inception
considered the correct principle to be applied by the Court in an appeal
against an order of acquittal and held that the High Court has full power to
review at large I the evidence upon which the order of acquittal was founded
and to reach the conclusion that upon that evidence the order of acquittal
should be reversed. The, Privy, Council in Sheo Swarup v.
King Emperor(2) negatived the legal basis for
the limitation which the several decisions of the High Courts had placed on the
right of the State to appeal under s. 417 of the Code.
Lord Russel delivering the judgment of the
Board pointed out that there was "no indication in the Code of any
limitation or restriction on the High Court in the exercise of its powers as an
appellate tribunal", that no distinction was drawn "between an appeal
from an order of acquittal and an appeal from a conviction", and that
"no limitation should be placed upon that power unless it be found
expressly stated in the Code". He further pointed out at p. 404 that,
"the High Court should and will 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 (1)
Clanville Williams in 'Proof of Guilt'. (2) [1934] L.
R. 61 I. A. 398.
494 been, acquitted at his trial, (3) the
right of the accused lo 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".
In Sanwat Singh & Others v. State of
Rajasthan. (1) after an exhaustive review of cases decided by the Privy Council
as well as by this Court, this Court considered the principles laid down in
Sheo Swarup's case(2) and held that they afforded a correct guide for the
appellate court's approach to a case against an order of acquittal. It was
again pointed out by Das Gupta, J. delivering the judgment of five Judges in
Harbans Singh and Another v. State of Pubjab(3) "In many cases, especially
the earlier ones the Court has in laying down such principles emphasised the
necessity of interference with an order of acquittal being based only on "
compelling and substantial reasons' and has expressed the view that unless such
reasons are present an Appeal Court should not interfere with an order of
acquittal (vide Suraj Pal Singh v. The State-(1952) S.C.R.
194; Ajmer Singh v. State of Punjab (1953)
S.C.R.418; Puran v. State of Punjab A.I.R.
1953 S.C. 458). The use of the, words
'compelling reasons' embarrassed some of the High Courts in exercising their
jurisdiction in appeals against acquittals and difficulties occasionally arose
as to what this Court had meant by the words 'compelling reasons'. In later
years the Court has often avoided emphasis on 'compelling reasons' but
nonetheless adhered to the' view expressed earlier that before interfering in
appeal with an order of acquittal a Court must examine .not only questions of
law and fact in all their aspects but must also closely and carefully examine
the reasons which impelled the lower courts to acquit the accused "and
should interfere only if satisfied after such examination that the conclusion
reached by the lower court that the guilt of the person has not been proved is
unreasonable. (Vide Chinta v. The State of Madhya Pradesh-Criminal Appeal No.
178 of 1959 decided on 18-11-1960;
Asharakha Haibatkha Pathan v. The State of
Bombay-Criminal Appeal No. 38 of 1960 decided on 14-12-1960).
"...... On close analysis, it is clear
that the principles laid down by the Court in this matter have remained the
same. What may be called the golden thread running through all these decisions
is the rule that in deciding appeals against acquittal the Court of Appeal must
examine the evidence with particular care, must examine also the reason on
which the order of acquittal was based and should interfere with, the order
only when satisfied that the view taken by the acquitting Judge is clearly
unreasonable. Once the appellate court comes to the conclusion that the view
taken by the lower court is clearly an unreasonable one that itself is a
"compelling (1) [1961] 3 S.C. R. 120. (2) [1934] L. R. 61 1. A. 398..
(3)[1962] Suppl. (1) S. C. R. 104 at p. 109.
495 reason" for interference. For, it is
a court's duty to convict a guilty person when the guilt is established beyond
reasonable doubt, no less than it is its duty to acquit the accused when such
guilt is not so established." Now to the facts. The scene of murder is
rural, the witnesses to the case are rustics and so their behavioural pattern
and perceptive habits have to be judged as such.
The too sophisticated approaches familiar in
courts based on unreal assumptions about human conduct cannot obviously be
applied to those given to the lethargic ways of our villages. When scanning the
evidence of the various witnesses we have to inform ourselves that variances on
the fringes, discrepancies in details, contradictions in narrations and embellishments
in inessential parts cannot militate against the veracity of the core of the
testimony provided there is the impress of truth and conformity to probability
in the substantial fabric of testimony delivered. The learned Sessions Judge as
at some length.
dissected the evidence, spun out
contradictions and unnatural conduct, and tested with precision the time and
sequence of the events connected with the crime, all on the touchstone of the
medical evidence and the postmortem certificate. Certainly, the court which has
seen the witnesses depose, has a great advantage over the appellate judge who
reads the recorded evidence in cold print, and regard must be had to this
advantage enjoyed by the trial judge of observing the demeanour and delivery, of
reading the straightforwardness and doubtful candour, rustic naivete and clever
equivocation, manipulated conformity and ingenious unveracity, of persons who
swear to the facts before him. Nevertheless, where a judge draws his
conclusions not so much on the directness or dubiety of the witness while on
oath but upon general probabilities and on expert evidence, the court of appeal
is in as good a position to assess or arrive at legitimate conclusions as the
court of first instance. Nor can we make a fetish of the trial judge's psychic
insight.
Let us now sift the evidence from the proper
perspective outlined above avoiding both the exploitation of every plausible
suspicion as militating against the certitude of guilt and the unjust loading
of the dice against the accused merely because of a conviction rendered by the
High Court.
The probative items placed before the court
by the prosecution there is no defence evidence adduced-falls into three
groups. Firstly, we have the eye-witness account of the mortal attack as given
by P. Ws. 5 and 7. Secondly, the dying declaration stated to have been made by
the deceased a little before he expired and witnesses, Balakrishna and Ramu,
P.Ws. 2 and 9, have been cited in support thereof.
The last set of incriminating facts consists
in the discovery, under section 27 of Evidence Act, of certain material objects
pursuant to the statements made by the accused supported by the evidence of few
persons and the chemical analyst's report. The Sessions Judge has rejected all
the, three categories taking up an extreme position grounded on the medical
evidence and supposed human conduct while the appellate judges have swung to
the opposite standpoint and accepted substantially all the prosecution
evidence. With vigilant skepticism, let us scan the important evidence without
going over the whole ground again.
496 That Liariba died of violence on 26th
September, 1966, is indubitable, but who did him to death is a moot point. The
lethal attack is alleged to have been made on a cart-.track lying between the
two villages, Bibi and Ghadgewali in the afternoon on a bazaar day in the
former village when people must evidently have been moving about. The macabre
story of an old man, Hariba, being killed on a road near village Bibi around
5-30 p.m. by two known persons, Shivaji and Lalasaheb was recounted by one
Balakrishna (P.W. 2) before the Police Patial (P. W. 15) in less than an hour
of the incident (vide Ex. 8 and Ex. 36). Thus, the first information has been
laid promptly, if we assume the hour of death to have been correctly stated
there. Ext. 8 does mention briefly the material facts and the crucial witnesses
in what may be treated as a hurriedly drawn up embryonic document. The
contention of counsel for the respondents before us, which has received
judicial reinforcement by acceptance by the Sessions Judge, is that this first
information is an ersatz product of many minds manupulating to make it, and the
apparently short, honest interval between the occurrence and the report, to the
Patil is a make-believe, the death having occurred beyond doubt at about 2-00
p.m. and not at 5-30 p.m. as the prosecution disingenously pleads. Reliance is
primarily placed for this pre-clocking of the occurrence on the postmortem
certificate, doctor's evidence and the medical expertise contained in Modi's
Medical Jurisprudence.
Admittedly, 'semi-digested solid food
particles' were observed in the deceased's stomach by P.W. 4 the medical
officer, and the inference sought to be too neatly drawn therefrom is that the
man must have come by his end (and that the digestive process must also have
come to a halt with it) 2 to 3 hours after his last lunch, which, according to
P.W. 2, was at 10.00 a.m. If he did die before 2.00 p.m., everything else in
the prosecution evidence became suspect, argued the court. The assurance of
this assertion, however, turns on the exact accuracy, in terms of the I.S.T.,
of the testimony of P.W. 5 who swore that himself and the deceased had taken
food on the fateful day at about 10.00 or 10.30 a.m. before setting out for
Bibi. The sluggish chronometric sense of the country-side community in India is
notorious since time is hardly of the essence of their slow life; and even
urban folk make mistakes about 'time when no particular reason to observe and
remember the hour of minor event like taking a morning meal existed. 10.30 a.m.
could well have been an hour or more one way or the other and too much play on
such slippery facts goes against realism so essential in a testimonial
appraisal. More importantly, the court must not abandon a scientific attitude
to medical science if it is not to be guilty or judicial superstition To quote
Modi's Medical Jurisprudence that food would be completely digested in four to
five hours or to swear by the doctor to deduce that death must have occurred
within 3 hours of the eating and, therefrom, to argue that the presence of
undigested food in the dead body spells the sure inference that death must have
occurred before 2.00 p.m. is to mis-read the science on the subject of
digestive processes. Modi's Medical Jurisprudence, extracts from which have
been given by both the courts, makes out that a mixed diet of animal and
vegetable foods. normally taken by Europeans, takes 4 to 5 hours for complete
digestion while a vegetable diet, containing mostly farinaceous food usually
consumed by Indians, does not leave the stomach completely within 6 to 7 hours
after its ingestion. Indeed, the learned author cautiously adds 497 that the
stomachic contents cannot determine with precision the time of death
"inasmuch as the power of digestibility may remain in abeyance for a long
time in states of profound shock and coma". He also states "it must
also be remembered that the process of digestion in normal healthy persons may
continue for a time after death". The learned judges reminded themselves
of the imponderables pointed out by Modi which makes the 'digestive' testimony
inconclusive and, therefore, insufficient to contradict positive evidence, if
any, about the time of death To impute exactitude to a medical statement
oblivious to the variables noticed by experts and changes in dietary habits is
to be unfair to the science. We are not prepared to run the judicial risk of
staking the whole verdict on nebulous medical observations.
Given so according to P.W. 5 deceased took
tea sometime after 12-30 p.m. when they started for Bibi. At that time the
possibility of his having had something to eat is not ruled out. If so, the
medical evidence as to the time of death will not be inconsistent with the
postmortem findings.
Now let us get into the core of the matter to
ascertain whether reasonable doubts about the prosecution case are available on
the record. Have we credible eye-witness evidence ? Have we corroborating
circumstances ? Have any key witnesses been kept out of the Court without just
explanation or rousing serious suspicion ? Are there circumstances militating
against the reliability of the State's case ? Have the accused a plausible
explanation for incriminating discoveries ? As stated earlier, there are three
types of evidence adduced on behalf of the prosecution. Eye-witnesses must
naturally figure most prominently in a judicial search for truth. P.W. 5,
Vilas, had admittedly some quarrel with the second accused and friendliness with
Sita Ram (P. W. 8) who in turn bore bitter hostility towards both the accused.
In that view, P.W. 5 may be said to be tainted by bias and interestedness and
so his testimony must be warily evaluated. However, witnesses who are not
neutral may well testify to truth and need not be condemned out of hand
provided in basic features their deposition is direct, probable and otherwise
corroborated.
Absent such reassuring factors P.W. 5's
evidence may have to be eschewed. Vilas speaks to his having taken his forenoon
meal on the 26th September 1966 at Kadam wadi. He bad met Hariba, quite
naturally, because both of them were staying in the house of Sita Ram. They set
out together to Bibi as each had some work in that place. The journey together
is explained in the evidence in a credible manner. They appear to have met
grocer Himmat Gujar (P.W. 6) and each one purchased some sundry items from his
shop. This fact is corroborated by P.W. 6. While returning they stepped into
the house of one Shiva Ram and later proceeded to Kaclamwadi at about 3-45 or
4. p.m. One Dada who was also going in the same direction, joined them. All
this is consistent with country. side leisureliness and gregariousness. As they
were walking along, the accused called out to Dada who waited in response while
the deceased and Vilas went ahead.
Whereupon the accused spring upon. Hariba. At
the behest of accused No. 1, accused No. 2 drew his knife, frightened Vilas
into silence and gave knife blows on the head and eyebrow or Hariba. The first
accused made his violent contribution with a 'hunter' to which a lead-ball was
attached and the strikers therewith brought the deceased down on the ground.
The second accused kicked the fallen 498 man, P.W.5, speaks to these facts as
also to the accused accosting the deceased whether he would still reside in the
Vasti. The arrival at about that time of Zumber Mali, P.W.7 in a cart, from
Ghadgewadi side is also spoken to by P.W.5. He would have us believe that he
was taken by the accused, threatened to keep what he saw secret and warned not
to leave Ghadgewadi for a couple of days. The witness later went to his office
at Ghadgewadi and mentioned about Haris violent death to school boy Bhanudas
(P.W. 17), the son of Sita Ram. Many other inconsequential details were also
related by the witness but the fact remains that he met Sita-Ram (P.W. 8) only
at about 9 p.m. and had not informed the authorities before that. The failure
to disclose the incident to any one at the village Ghadgewadi, the bias and
interest Vilas had, the evidence that Hariba had taken the food at about 10 or
10-30 a.m. and that later on they had not taken meals anywhere-a circumstance
which militates against the medical evidence about undigested food in the
cadavar, in a feeble way though-the slight discrepancy between Vilas, P.W. 5,
and Sita Ram, P.W. 8 about the time of the former's arrival at Kadamwadi and
the unnaturalness of the twists and turns of the story narrated by Mm-these are
made points of veliement criticism by the accused.
There is elaborate discussion of his evidence
by both the courts. "There is nothing unnatural or improbable", is
the view of the High Court about P.W. 5's evidence. Himmat Lal, P.W. 6
substantially corroborates the visit of the deceased and P.W. 5 to his shop at Bibi
early in the afternoon.
Likewise Shiva Ram, P.W. 12 swears to the
deceased and P.W.5 being together at Bibi till about 3-30 p.m. This also
strengthens the version of Vilas. The minor conflict between P.W. 8 who says
that P.W. 5 came at lamp-lighting time while P.W. 5 puts it at 9 p.m. is of
little moment.
The other criticisms also do not add up to
much-although.
certainly this somewhat interested witness
must be subjected to serious corroboration in material particulars before he
can be acted upon.
The evidence of Zumber (P.W. 7) is relied
upon as that of an eyewitness because he swears to having seen the accused
kicking and fisting the deceased. However, his testimony looks tricky and
shaky. He had stated in the committal court that he had not seen whether the
first accused had a hunter with him and the second accused a knife in his hand.
It is also doubtful that a witness who had
been declared hostile in the committal court by the prosecution can be so
readily accepted at his word. If he had been won over by one party at one
stage, as the prosecution seems to suggest, it is difficult to accept his
integrity in a grave case of murder when he deposes as an eye-witness. What is
more his flagrant contradiction on a crucial point between the committal court
and the Sessions Court weakens his veracity, and worse is his conduct when he
says that he was able to see the occurrence from an uneven terrain because he
went to sow in the field that afternoon although his uncle had died that very
day and he had gone for the funeral The witness admits that he did not ask the
accused why they were kicking the man nor did he stop the sowing in the field
at least to see what had happened to the victim. Even on his way back when he
saw people collected near the dead body, he did not bother to enquire what had
happened. To taint his truthfulness he admits that there was a quarrel between
the accused's uncle on the one hand and himself and his father on the other. A
careful reading of the evidence given by this 499 the place at all that
afternoon. We are not able to agree with the easy credence lent by the learned
Judges of the High Court to this testimony. In short, there is only a single
eye-witness to the occurrence, P.W. 5.
A legitimate criticism is made as to why Dada
has been withdrawn. It is not as if every witness who has something to do with
some part of the prosecution story should pass through the witness box. There
is a discretion in the Public Prosecutor to pick and choose but to be fair to
the Court and to truth. If Dada were essential to untold the prosecution story
and had been suspiciously suppressed from the Court, we would and should have
drawn an adverse inference but in the circumstances set out earlier, Dada does
not seem to be an eye-witness to the actual attack and his absence from the
witness box is not, therefore, fatal to the prosecution. No sinister motive can
be imputed to his not being examined. Prudence would have suggested a different
course.
Had the whole case rested on the sole
testimony of P.W. 5 our minds would have wavered. The prosecution places, by
way of corroboration, the dying declaration of Hariba.
Balakrishna, P.W. 2. a resident of Bibi who
is the first informant in the case, states that he had proceeded from Bibi to
Ghadgewadi for purchasin'g' his rations, having received wages in the morning.
Ramu (P.W. 9) and a few others were also with him. On their way back from
Ghadgewadi to Bibi after buying rations, they came by three persons identified
as accused No. 1 and accused No. 2 and the Secretary (presumably P.W. 5).
Balakrishna (P.W. 2) testifies to having seen the deceased lying on the road at
Jamana field. One Anna Mali and a "malaria doctor" had come from the
basti side at the spot at about that time. A man lying on the road was bleeding
and Anna asked him why he came by the wounds whereupon Hariba spoke in a
groaning tone to the he of P.W. 2 and others that Lala and Shiva had beaten
him. This =Is says that the malaria doctor had left without stopping there-not
that unnatural in our country to see people disappear when anything savouring
of violent crime takes place fearing that their remaining there might involve
them as witness or otherwise later on. Anyway, P.W. 2 proceeded to Bibi,
reported to the Police Patil, P.W.b15 and signed the statement recorded from.
him, Ext. 8.
Little injury has been inflicted on his
testimony in cross examination and no serious reason has been made out in this
Court why the High Court's acceptance of his word should be rejected. Indeed,
apart from describing the evidence as unnatural and as not in consonance with
Zumber's presence, precious little has been adduced by the trial court to
discredit his evidence. But the criticism about the non examination of Anna who
drew the dying declaration from the mouth of the deceased and of the malaria
doctor, who Drobably is a respectable man by rural standards, cannot be lightly
brushed aside. The non-examination of the latter need not detain us because
smelling trouble he had made himself scarce without even stopping there. The
failure to put 500 Anna in the witness box after having cited him disturb our
minds a little more but he is the father of Zumber and may at the most repeat
what P.W. 2 has sworn. The prosecutor giving him up under these circumstances,
may perhaps be taking chances with the court but we are not persuaded of any
unfairness in the special circumstances of this case.
It is noteworthy that P. W. 2 had purchased
rations as deposed to by P.W. 14, their ration shopkeeper. P.W. 9 Ramu who had
accompanied P.W. 2 also corroborates him Ext. 8, the first information
statement, makes specific reference to the dying declaration made to Anna. We
are satisfied that P.W.
2 and P.W. 9 are credible enough to prove the
dying declaration since P.W. 9 also has not suffered any material dent in his
evidence as a result of cross-examination. We are conscious that undocumented
dying declarations' are easy to get up and being based on the fading
recollection and unsure probity of ordinary persons with human frailities, cannot
be safely trusted save when the general features and other dependable materials
justify reliance. Even so the natural statement of Hariba about the cause of
his death to the passersby proved by P.Ws. 2 and 9, read in the background of
other circumstances of the case, overcomes the rule of prudent reluctance
judicially adopted in evaluating oral dying declarations.
The discovery of incriminating materials
pursuant to confessions made by the accused constitutes the third category of,
evidence. Obviously, the confessions are inadmissible butthe discoveries are,
provided they are pertinent to the guilt of the accused., So far as accused No.
2 is concerned, his statement resulted in the discovery of a knife (vide
Panchnama, Ext. 13). of course, knives were discovered long ago and not now but
this knife lay buried and was recovered by the .accused from a pit in the
corner of a wall of his house. There was .human blood on the blade of the
knife, M.O. 5/11 according to the chemical analyst's report. The second
accused's clothes also were picked up by him pursuant to his statement. He had
worn a shirt and pants on the day of occurrence and P.W. 13, a neighbour
deposes that ,the second accused had come to him at about 6 p.m. on the Monday
when Hari died and had mentioned to him that since his own house was locked he
might be permitted to keep his clothes in the witness's house. Thereafter he
left his clothes under am empty Khokha from where he himself took them out-when
he later came in the company of .the police. There are blood 'Stains on the
clothes and it is found by, the chemical examiner that the blood on the pants
are of the same blood group as that of the deceased. When the second accused
was asked under sec.
342, Cr. P.C. about the export of the
chemical examiner noticing blood stains on the shirt, M.O. 5/2 and of human
blood on the blade of the knife, M.O. 511, he merely answered, "I do not
know". He also described as false the fact of his recovering the clothes
and the knife. Bald denial notwithstanding, we are inclined to believe, with
the learned Judges of the High Court. that the knife and the shirt have been
identified as his and since he gad recovered them, thereby making the police
discover, the fact, there was incriminating inference available against the
said accused. We may notice here a serious omission committed by the trial
Judge and not noticed by either 501 court. The pants allegedly worn at the time
of the attack by the second accused has stains of blood relatable to the.
group of the deceased. This circumstance
binds him to, the crime a little closer but it is unfortunate that no specific
question about this circumstance has been put to him by the court. It is trite
law, nevertheless fundamental that the prisoner's attention should be drawn to
every inculpatory material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area many gravely' imperil
the validity of the trial itself, if consequential miscarriage of justice has
flowed. However, where such an omission has occurred it does not ipso facto
vitiate the proceedings and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary material not being put
to the accused, the court must ordinarily eschew such material from
consideration. it is also open to the appellate court to call has as regards
the circumstances established against him but not put to him and if the accused
is unable to offer the appellate court any plausible or reasonable explanation
of Such circumstances, the court may assume that no acceptable answer exists
and that even if the accused had been questioned at the proper time in the
trial court he would not have been able to furnish any good ground to get out
of the circumstances on which the trial court had relied for its conviction. In
such a case, the court proceeds on the footing that though a grave irregularity
has occurred as regards compliance with section 342, Cr. P.C., the omission has
not been shown to hive caused prejudice to the accused. In, the present case,
however, the High Court, though not the trial court has relied upon the
presence (if blood on the, pants of the blood group of the deceased.
We have not been shown what explanation the
accused could have offered to this chemical finding particularly when we
remember that his answer to the question regarding the human blood on, the
blade of the knife was 'I do not know'.
Counsel for the appellants could not make out
any intelligent explanation and the 'blood' testimony takes the crime closer to
the accused. However, we are not inclined to rely over much on this
evidentiary-circumstance. although we should emphasise how this inadvertence of
the trial court had led to a relevant fact being argued as unavailable to the prosecution.
Great-care is expected of Sessions Judges. Who try grave cases to collect every
incriminating circumstance and put it to the accused even though at the end of
a long trial the Judge may be a little fagged out.
The first accused also had made a statement
leading to the discovery of a hunter with a lead-ball from a pit in the field
of his uncle Bobade (vide Panchnama Ext. 14). P.W. 3, the Panch witness speaks
to this effect. The High Court has relied on this evidence with which we agree
After all a hunter with a lead-ball is not something ordinarily found in fields
or wells or in houses. The conclusion that emerges from these discoveries is
that the apparel, of the second accused and the weapons recovered establish
some nexus between the crime and the appellants. We are aware that by
themselves they are inconclusive but in conjunction with other facts they may
have efficacy.
502 Some attempt was made to show that the
many injuries found on the person of the deceased and the manner of their
infliction as deposed to by the eye-witnesses do not tally.
There is no doubt that substantially the
wounds and the weapons and the manner of causation run congruous.
Photographic picturisation of blows and Kicks
and hits and strikes in an attack cannot be expected from witnesses who are not
fabricated and little turns on indifferent incompatibilities. Efforts to
harmonise humdrum details betray police tutoring, not rugged truth-, fulness.
Now let us sum up the whole case in the light
of the evidence we have found to be of worth. We must observe that even if a
witness is not reliable, he need not be false and even if the Police have
trumped up one witness or two or has embroidered the story to give a credible
look to their case that cannot defeat justice if there is clear and unimpeachable
evidence making out-the guilt of the accused.
Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a court can convict and the
mental distance between ,may be' and 'must be' is long and divides vague
conjectures from sure conclusions.
Informing ourselves of these important
principles we analyse the evidence found good by us. In our view there is only
one eye-witness, P.W. 5, Vilas. Even if the case against the accused hangs on
the evidence of a single eye-,witness it may be enough to sustain the,
conviction given sterling testimony of a competent, honest man, although as a
rule of prudence courts call for corroboration. It is a platitude to say that
witnesses have to be weighed and not counted since quality matters more than
quantity in human affairs.
We are persuaded that the PW 5 is a witness
for truth but in view of the circumstances that he is interested, we would
still want corroboration in this case to reassure ourselves.
And that we have in this case.
The earlier discussion leaves unscathed the
dying declaration and incriminating discoveries and the only question is
whether they are sufficient to reinforce the essential facts bearing on the
appellants' direct involvement in the crime. The accused, we feel convinced,
are reasonably proved to have murdered Heriba. But counsel argues that no
animus against the victim has been made out and motiveless malignity militates
against natural human condut. Proof of motive satisfies the judicial mind about
the likelihood of the authorship but its absence only demands deeper forensic
search and cannot undo the effect of evidence otherwise sufficient. Motives of
men are often subjective, submerged and unamenable to easy proof that courts
have to go without clear evidence thereon if other clinching evidence exists.
In the case on hand the enmity with Sita Ram being active and admitted,, 503
the pique against Hariba, his loyal dependent, is understandable. While
striking the deceased he was asked in a tell-tale manner, whether he would
still stay at Vasti (Kadamwadi, with Sita Ram). That betrays the motive. We
affirm the finding of the High Court.
Two men in their twenties thus stand
convicted of murder and have to suffer imprisonment for life because the
punitive strategy of our Penal Code does not sufficiently reflect the modern
trends in correctional treatment and personalised sentencing. We do riot wish
to consider these facets as they fall outside our scope here.
We confirm the conviction and sentence and
dismiss the appeal.
K. B. N. Appeal dismissed.
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