Ramji Surjya & ANR Vs. State of
Maharashtra [1983] INSC 71 (13 May 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) ERADI, V. BALAKRISHNA (J)
CITATION: 1983 AIR 810 1983 SCR (3) 268 1983
SCC (3) 629 1983 SCALE (1)763
ACT:
Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970-5 2-Accused acquitted by trial court but
convicted by High Court, Corroboration of evidence of sole eye witness-when
necessary. Jurisdiction of' appellate court co-extensive with that of trial
court Appellate court cannot totally brush aside appreciation of evidence by
Trial Court. Appellate court to give cogent reasons for conviction should be
slow in interfering
HEADNOTE:
The appellants were charged under section
302134 I.P.C.
for murdering the husband of P.W. 2 when he
was Lying on a cot inside a hut and the P.W. 2 was sitting outside. The trial
court disbelieved the case of prosecution that P.W. 2 was an eye witness of the
occurrence. The trial court held that the details of the incident given by P.W.
2 were imaginary or improbable and, therefore, unbelievable; there was several
contradictions in her evidence which could not be accepted without any further
corroboration and the evidence of certain other prosecution witnesses could not
be safely relied on as furnishing corroboration to the statement of P.W. 2 in
view of the several instances narrated in its judgment. The evidence of the
doctor who conducted postmortem examination of the body of the deceased was
that the death of the deceased could not have taken place soon after the dinner
as he did not find any food particles in the stomach and small-intestines of
the deceased The trial court observed that the evidence of P.W.
2 that she had served food for the deceased
at about 8.30 P.M. could not be accepted as probable as the fatal assault had
taken place at about 9 P.M. There was a delay of nearly 24 hours in giving the
information to the police out post.
The evidence for motive also was found to be
discrepant .
Accordingly the trial court acquitted the
appellants.
On appeal the High Court reversed the
judgment of acquittal, convicted the appellants and sentenced them to undergo
rigorous imprisonment for life. The High Court severely criticised the evidence
of the doctor observing that, "our impression is that he hardly knows what
he Is talking about and what is extraordinary is that the less he knows the
more assertive he is, No reliance what so ever can be placed on such evidence
and no conclusion can be drawn either adverse or in favour of the prosecution
from the opinion evidence of such a poorly qualified medical witness".
Allowing the appeal, 269
HELD: There is no doubt that even where there
is only a sole eye witness of a crime, a conviction may be recorded against the
accused concerned A provided the Court which hears such witness regards him as
honest and truthful. But prudence requires that some corroboration should be
sought from the other prosecution evidence in support of the testimony of-a
solitary witness particularly where such witness also happens to be closely
related to the deceased and the accused are those against whom some motive or
ill- will is suggested. [276 G-H] In the instant case a careful analysis of the
evidence relating to the inordinate delay involved in the giving of the first
information to the police and the other inherent inconsistencies in the
evidence of the sole eye witness shows that her evidence cannot be considered
as sufficient to find the accused guilty. The first information (Exh. P. 10)
itself appears to be one prepared after some deliberation. The motive suggested
by the prosecution does not appear to be strong enough for the accused joining
together to commit the murder of the deceased [276 H, 277 A, 275 C] While there
is no doubt that the jurisdiction of an appellate court is coextensive with
that of the trial court, in the case of an appeal against a judgment of
acquittal it cannot totally brush aside the appreciation of the evidence by the
trial court. The reasons for reversing a judgment of acquittal D should be
cogent and if two views are reasonably possible, the appellate court should be
slow in interfering with the judgment of the trial court, even if it is
possible for it to take a different view after a process of laborious
reasoning. [277 G-H, 278 A] In the instant case the High Court has not bestowed
due care or, the principles governing its jurisdiction. There is no proper
discussion ill the judgment of the High Court about the various versions in the
prosecution evidence about the giving of the first information to the police in
their true perspective. The High Court has over-simplified this issue and has
observed. "In this case, bearing in mind the place where the incident
occurred, we find no unreasonable delay in reporting the incident to the police
out-post at Molgi and subsequently in giving the complaint at the Dhadgaon
Police Station". It may be noted that the distance between Molgi and the
village of the deceased was hardly three miles but the 'khabar' reached the
Molgi police out post, according to the prosecution nearly 24 hours after the
incident. The reason given by the prosecution for this inordinate delay, that
P.W. 2 did not want the information to be lodged with the police until the
arrival of her son P.W. I, is hardly convincing since there are several
different versions about the lodging of the information with the police out
post and the earlier versions of the crime said to have been given by P.W. 2
which were in writing appear to have been suppressed. This important aspect of
the case has been overlooked by the High Court. It would be unsafe to act upon
the evidence of P.W. 2 and convict the appellants. [277 G, 278 A-C, 274 F-G,
279 A] The comment by the High Court on the evidence of the doctor appears to
be more severe than what it should have been particularly when his opinion that
'it was possible that the death in this particular case was instantaneous, is
not seriously challenged. [278 G-Hl 270 CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal No. 429 of 1980 From the Judgment and order dated the 21st
December, 1979 of the High Court of Bombay in Criminal Appeal No. 467 of 1975.
M.N. Sharma for the Appellants. (Amicus
Curiae) J. S. Akartey and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH J. This Criminal Appeal under section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act No. 28 of 1970)
is filed by two appellants Ramji Surjya Padvi and Bhikji Surjya Padvi accused
Nos. 2 and 4 in Sessions Case No. 102 of 1974 on the file of the Additional
Sessions Judge, Dhulia against the judgment of the High Court of Bombay in
Criminal Appeal No. 467 of 1975 by which it reversed the judgment of acquittal
passed by the Sessions Court on a charge under section 302/34 of the Indian
Penal Code and imposed the sentence of rigorous imprisonment for life on each
of them after holding them guilty of the charge under section 302/34 of the
Indian Penal Code.
The facts of the case are these: Damji
(accused No. 1), Ramji (accused No. 2) and Bhikji (accused No. 4) are the sons
of Surjya Tulya Padvi (accused No. 3). Accused Nos. I to 4 are residents of a
village called Veri in taluka Akkalkuwa. The said village was by the side of a
river called Mothi Nadi. In the month of March, 1974, one Prabhat Singh (the
deceased) a resident of Mojapada which is a hamlet of Bhagdari village within
the limits of Dhadgaon police station had grown watermelons on a portion of the
bed of the Mothi Nadi river near the village, Veri. The distance between the
place where watermelons had been grown by the deceased and his village was
about two miles. It is the case of the prosecution that during the last week of
March, 1974, the deceased Prabhat Singh and his wife, Surjabhai (P.W. 2) were
staying in a hut which they had constructed near the place where they had grown
watermelons in order to keep watch over the watermelon crop. They used to cook
their food in the hut. On March 26, 1974 at about 9.00 P.M. when Prabhat Singh
was Lying on a cot inside the hut, Surjabai was sitting outside near an agiti
in which she had kept fire and was warming 271 herself. It is the case of the
prosecution that at that time, the four accused persons referred to above came
there and when they were questioned by Surjabai, they told that they had come
to smoke tobacco. At that time accused No. 2, Ramji was armed with an axe. The
accused did not, however, stay there for the purpose of smoking but suddenly
entered the hut where accused Nos. 1, 3 and 4, Damji, Surjya and Bhikji caught
hold of Prabhat Singh and Ramji (accused No. 2) gave a number of blows with an
axe on the head, face and neck of Prabhat Singh. Thereafter they ran away.
Surjabai out of fear went near a big stone in a nearby hillock and concealed
herself behind it. She continued it sit there for some time and on returning to
the scene of occurrence she found that her husband had died. Thereafter she
went to her village in the early hours of March 27, 1974 and narrated the
incident to her daughter-in-law Bharatibai (P.W. 3) in the presence of two of
her servants Bapu and Arshya who have not been examined in the case. It is
stated that she sent another servant of her's Bamanya (P.W. 8) to go to a
village called Nala-gavi where her son, Ratan Singh (P.W. 1) had gone on the
previous day to fetch him. She thereafter sent for Gumba (P.W. 5) who was
formerly the Police Patil of her village and narrated before him the incident
in which her husband had been killed. It is stated that she mentioned the names
of the four accused as the assailants to P.W. 3 Bharatibai as well as to Gumba
(P.W. 5). It is further stated that Surjabai, Gumba, Bharatibai and the two
servants, Bapu and Arshya and some others went to the place where the dead body
of Prabhat Singh was lying. They also sent for Detka (P.W. 9) who was the
Police Patil at that time. Ratan Singh, according to the prosecution, reached
the place at about 5.00 P.M. On being informed by Bamanya (P.W. 8) about the
incident, Surjabai narrated the whole story again before Ratan Singh (P.W. 1).
Thereafter P.W. 1 went to the village Molgi where there was a police out post
alongwith Detka (P.W. 9) and orally mentioned to the Head Constable by name
Keval Bedse (P.W. 13) about the incident.
P.W. 13 prepared the outpost 'khabar' (Exh.
36) in the prescribed form and sent P.W. 1 Ratan Singh alongwith the outpost
khabar to the Police Station at Dhadgaon. P.W. 13 thereafter left for the scene
of occurrence to keep watch over the dead body. Ratan Singh is stated to have
hired a jeep and gone to Dhadgaon and reached that place at about 2.15 A.M. On
March 28, 1974. There he met the police Sub Inspector at the Police Station and
made a statement (Exh. 10) before him which was recorded by him In that
statement he narrated what he had heard from his mother at about 5.00 P.M. on
272 March 27, 1974. In that statement, the names of the four accused are found
as the assailants. Thereafter the police Sub Inspector came to the spot on the
morning of March 28, 1974 and carried on further investigation. He arrested the
accused Nos. I to 3 on the evening of March 28, 1974 accused No. 4 on the next
day and after completing the investigation, he filed the charge sheet against
them for an offence punishable under section 302/34 of the Indian Penal Code.
The learned Sessions Judge who tried the case disbelieved the case of the
prosecution that Surjabai was an eye witness of the occurrence and acquitted
the accused.
Against the said judgment of acquittal, the
State Government preferred an appeal before the High Court. It would appear
that during the pendency of the appeal, accuced No. 1, Damji and accused No. 3,
Surjya had died. This fact perhaps was not brought to the notice of the High
Court. Before the High Court, the accused were represented by amicus curiae.
The High Court set aside the judgment of acquittal and convicted all the
accused including accused No. 1 and accused No. 3, who had died earlier, under
section 302/34 of the Indian Penal Code and imposed on each of them the
sentence of imprisonment for life. Against the judgment of the High Court,
accused No. 2 and accused No. 4 preferred this appeal before this Court. When
the appeal came up for admission, by an order made by this Court on August 18,
1980, the appeal of Bhikji (accused No. 4) was dismissed. The notice of appeal
was issued only in so far as Ramji (accused No. 2) was concerned.
Shri M. N. Sharma who has appeared in this
case as amicus curiae has raised among others. two points before us (1) that
the case of the prosecution was a concocted one and (2) that in any event since
it was not possible to say that two opinions were not possible about the guilt
of the accused, it was not open to the High Court to reverse the judgment of
acquittal of the Sessions Court.
We shall first deal with the manner in which
first information was given to the police in this case. It is true that in the
statement (Exh. 10) of Ratan Singh (P.W. 1) which is stated to have been
recorded at 2.15 A.M. On March 28, 1974 at the Dhadgaon Police Station we find
the names of all the four accused and a brief description of the incident which
is alleged to have been narrated by Surjabai (P.W. 2) at about 5.00 P.M. On
March 27, 1974 before Ratan Singh (P.W. 1). What value should be attached to
the contents 273 of this document depends on the evidence in the case.
According to the prosecution, the incident
took place at about 9 P.M. On March 26, 1974. Surjabai (P.W. 2) is stated to be
the sole witness of the crime. She is stated to have disclosed all the
particulars relating to the incident on the morning of March 27, 1974 to
Bharatibai (P.W. 3) and some others as stated above. Surjabai has stated in the
course of her deposition that she had told the Police Patil that she wanted a
complaint to be lodged, thereafter the Police Patil wrote something and that
writing was taken by Ratan Singh (P.W. 1) to Molgi where the police out post
was situated. She has also stated that she had instructed the Police Patil and
others that nobody should go to lodge a complaint till the arrival of her son,
Ratan Singh (P.W. 1).
The writing referred to above which according
to the events disclosed in the prosecution case is the first document
containing the gist of the version of Surjabai regarding the incident. That
document is not forthcoming in the case.
Bharatibai. (P.W. 3) has a different version
to give about the lodging of the complaint. She has stated in her cross-
examination: "My mother-in-law Surjabai had told Gumba, Police Patil that
he could lodge complaint of murder. This was stated to him at about breakfast
time in the morning.
Immediately thereafter Police Patil Gumba had
gone to lodge a complaint. Van Singh Sarpanch and Tap Singh had gone alongwith
Police Patil to lodge complaint. They returned at about 12 Noon after filing
complaint at Molgi". This complaint cannot be the same which is referred
to earlier because the earlier complaint according to P.W. 2 Surjabai was the
one which was taken by Ratan Singh (P.W. 1) to Molgi. The complaint referred to
by P.W. 3 Bharatibai is a complaint which was prepared at about noon by Police
Patil Gumba (P.W. 5) and lodged by him at Molgi at about 12.00 noon long before
the arrival of Ratan Singh at the scene of occurrence. This complaint is also
not forthcoming. Gumba (P.W, 5) who is a former Police Patil denies that
Surjabai (P.W. 2) had told him to go and lodge a complaint. He has stated that
he had received information about the murder in the morning, he did not go to
lodge a complaint as Detka (P.W. 9) was the Police Patil and that when Surjabai
narrated before Police Patil Detka the particulars of the incident, he asked
Police Patil Detka (P. W. 9). that he should go to lodge a complaint. This
happened according to him at about 2 P.M. On March 27, 1974. P.W. 9 Detka says
that he went to the place of occurrence at about 1.30 P.M.
On March 27, 1974 where the dead body was
Lying and he stayed there awaiting the arrival of 274 Ratan Singh (P.W. 1) who
reached that place by 5.00 P.M. and thereafter he and Ratan Singh went to Molgi
police out post where the head constable prepared the occurrence report. He
says that he reached Molgi at about sun-set time but the khabar report. (Exh.
36) prepared by the head constable at Molgi shows that the khabar' was given to
him at 21 hours i.e. 9.00 P.M. On March 27, 1974. Ratan Singh (P.W. 1) who is
stated to have given that khabar says that he reached Molgi at about 8.00 or
8.30 P.M. and gave the information contained in the khabar report. The first
information stated to have been recorded by the police under section 154 of the
Criminal Procedure Code is stated to be the one taken down at the Police
Station at Dhadgaon (Exh. 10) at 2.15 A.M. On March 28, 1974.
A close examination of the above evidence
shows that according to Surjabai (P.W. 2) there was a document prepared by
Gumba (P.w. 5) in the morning of March 27, 1974.
containing the information given by her which
was later on taken by Ratan Singh (P.W. 1). Then according to Bharatibai (P.W.
3) there was a document which was prepared by Gumba at about 12.00 Noon which
he took to Molgi and lodged it with the Molgi police out post. According to
P.W. 9 Police Patil Detka, the information was given at the police out post at
about sun-set time i.e. at about 6.30 P.M. The khabar report itself shows that
it was received at 9.00 P.M. On March 27, 1974 and the first information is
stated to have been recorded at 2.15 A.M. On March 28, 1974. In this case the
prosecution have attempted in the course of the evidence to explain away the
delay in giving the information to the police out post which was nearly 24
hours from the time at which the occurrence is stated to have taken place by
stating that Surjabai (P W. 2) did not want such information to be lodged with
the police until the arrival of Ratan Singh which, according to the
prosecution, took place at 5 P.M. On March 27, 1974. The attempt of the
prosecution to explain away the delay has failed in the instant case since we
have several different versions about the lodging of the information with the
police out post and the earlier versions of the crime said to have been given
by Surjabai which were in writing appear to have been suppressed in this case.
This extraordinary. delay in giving the first information to the police in the
present case which has not been properly explained cannot but be viewed with
suspician, 275 The motive for the crime is stated to be that the plot on which
the deceased had grown watermelons was being used by accused No. 2 Ramji some
years before the incident to grow onions and that there was a quarrel about 8
or 10 days prior to the incident between accused No. 2 and Ratan Singh (P.W.
1). The land in question being a part of the river bed did not belong to
accused No. 2 and he was not cultivating there for about 2 or 3 years before
the incident. The land was probably getting submerged during rainy season.
Accused No. 2 could not, therefore, be considered as being in possession of
that plot when the deceased commenced cultivation. There is also no evidence
showing that accused No. 2 had raised any objection when watermelon seeds were
actually planted. In the circumstances, the motive suggested does not appear to
be strong enough for the four accused joining together to commit the murder of
the deceased.
While there could be no doubt about the homicidal
character of the death of the deceased, the learned Sessions Judge who heard
the evidence of Surjabai (P.W. 2) held that the details of the incident given
by her were imaginary or improbable and, therefore, unbelievable. Some of the
inherent contradictions in her evidence are these: In her evidence she has
stated that she was sitting outside the hut near a place where she had kept
fire (agiti) at about 9.00 P.M. and she saw from there all that took place
inside the hut when her husband was assaulted by the accused. She has even
given the role played by each of them. She has stated that while accused Nos.
1, 3 and 4 held the deceased, accused No. 2 assaulted him repeatedly with the
axe he had brought. The sketch of the scene of occurrence (Exh. P. 4) shows
that the fire place was to the South of the hut but the hut had an opening
towards the East only. She could not, therefore, have seen the actual assualt
from the place where she is stated to be sitting. It is also noteworthy that
the only source of light at the time of the incident was the fire said to have
been ignited by Surjabai (P.W. 2). It is difficult to believe that she could in
that light identify the accused, the arms they were carrying and the clothes
they were wearing about which she has tried to give detailed description in her
evidence. Her answer that she had put more fuel in order to have more light so
that she could identify the accused properly appears to be bit artificial.
She, however, has admitted that it had become
dark even when they were taking food earlier. It is also strange that she did
not try to resist the attack on her husband. It is further seen that in Exh.
10, the first information, 276 it is stated that she had told Ratan Singh (P.W.
1) that at the time of the incident she was chit-chatting with her husband but
in her deposition she has stated that the deceased had fallen asleep at the
time of the incident. The doctor (P.W. 6) has stated that the cause of the
death was due to severe bleeding due to the cutting of the Light carotid
artery, It is also in evidence that the blood of the deceased had been splashed
all-round, but it is stated by Surjabai (P.W. 2) that not even a single stain
of blood was found on her clothes. Ordinarily on such an occasion a wife whose
husband is murdered would come into close contact with the body of her husband
and her clothes would become blood stained. In the instant case there was no
means of avoiding such stains also as there was darkness all-round where the
incident is stated to have taken place. The absence of blood stains on the
clothes of Surjabai (P.W. 2) suggests that she could- not have been present at
the scene at the time of occurrence. The statement found in Exh. P. 10 and also
in her deposition that she was hiding on a hillock during that night out of
fear is contradicted by the evidence of Bharatibai (P.W. 3) that Surjabai (P.W.
2) had told her that she was in the hut throughout till she returned home. We
may also not here that according to Ratan Singh (P.W. 1) the son of the deceased
they had engaged about seven 'annual' servants to work on their fields and one
of them was Bamanya (P.W. 8) who had gone to fetch him from Nalagavi village
where he had gone to see his son who was studying in Ashram School. None of the
servants had been asked to stay at the hut alongwith the deceased but only
Surjabai (P.W. 2) is stated to be present at the scene of occurrence. The
distance between the village of Surjabai (P.W. 2) and the scene of occurrence
was about 1 1/2 miles according to the evidence of Ratan Singh (P.W. 1). If
that was so, it is not known why Surjabai did not run to the village
immediately after the incident took place, instead of running towards the
hillock and returning to the village next morning.
There is no doubt that even where there is
only a sole eye witness of a crime, a conviction may be recorded against the
accused concerned provided the Court which hears such witness regards him as
honest and truthful. But prudence requires that some corroboration should be
sought from the other prosecution evidence in support of the testimony of a
solitary witness particularly where such witness also happens to be closely
related to the deceased and the accused are those against whom some motive or
ill will is suggested. Now in the instant case a careful analysis of the
evidence relating to the 277 inordinate delays involved in the giving of the
first information to the police and the other inherent inconsistencies in the
evidence of the sole eye witness i. e. Surjabai (P. W.2) shows that her
evidence cannot be considered as sufficient to find the accused guity. The
first information (Exh. P. 10) itself appears to be one prepared after some
deliberation. The role attributed to Gumba (P.W.5) the former Police Patil in
the prosecution evidence compels the Court to look for corroboration from the
other prosecution evidence before accepting the evidence of Surjabai (P.W. 2).
The accused Nos. 1 to 3 were arrested on
March 28, 1974. The axe and clothes recovered on March 28, 1974 itself on the
basis of the statement of accused No. 2 and of accused No. 3 had no blood
stains according to the report of the Assisstant Chemical Analyser to
Government (Exh. 39).
The house of accused No. 1 was not searched
on that day even though there was no impediment for doing so. His house was
searched on the next day when a dhoti said to contain some blood stain was
found with him. The delay in the recovery of this dhoti was considered by the
learned Sessions Judge as affecting the evidentiary value of the said recovery.
Similarly the blood stains said to be on a
banian seized from the person of accused No. 4 when he was arrested on March
29, 1974 was considered by the Sessions Judge as not possessing any
corroborative value again on account of the interval between the time of
occurrence and the time of recovery. The learned Sessions Judge felt that the
evidence of Surjabai could not be accepted without any further corroboration.
The learned Sessions Judge also felt that the evidence of the other prosecution
witnesses such as Gumba (P.W. 5), Police Patil Detka (P.W.9) and Ratan Singh
(P.W.1) could not be safely relied on as furnishing corroboration to the
statement of Surjabai (P.W.2) in view of the several circumstances narrated in
his judgment. The evidence of motive also was found to be discrepant by the
learned Sessions Judge. According y he acquitted all the accused.
The High Court which was hearing an appeal
against a judgment of acquittal has not bestowed due care on the principles
governing its jurisdiction. While there is no doubt that the jurisdiction of an
appellate court is coextensive with that of the trial court in the case of an
appeal against a judgment of acquittal it cannot totally brush aside the
appreciation of the evidence by the trial court, The reasons for reversing a
judgment of acquittal should be cogent and if two views are reasonably
possible, the appellate court should be slow in interfering with the judgment
of the trial court, even if it is possible for it to take a different view after
a process of laborious reasoning. We do not find a proper discussion in the
judgment of the High Court about the various versions in the prosecution
evidence about the giving of the first information to the police, which we have
pointed out above, in their true perspective. The High Court has
over-simplified this issue and has observed: "In this case, bearing in
mind the place where the incident occurred, we find no unreasonable delay in
reporting the incident to the police out post at Molgi and subsequently in
giving the complaint at the Dhadgaon Police Station". It may be noted that
the distance between Molgi and the village of the deceased was hardly three
miles but the 'khabar' reached the Molgi police out post, according to the
prosecution, nearly 24 hours after the incident. The reason given by the
prosecution for this inordinate delay is hardly convincing.
This important aspect of the case has been
overlooked by the High Court.
There is one other circumstance to which
reference may be made here. The doctor (P.W.6) who had conducted the post
mortem examinat;on of the body of the deceased gave evidence stating that the
death of the deceased could not have taken place soon after the dinner as he
did not find any food particles in the stomach or the small intestines of the
deceased. He opined that by the time of the death of the deceased at least four
hours must have passed after his taking food. There being nothing highly
incongruous about this statement, the learned Sessions Judge had observed in his
judgment that the evidence of Surjabai (P.W. 2) that she had served food for
the deceased at about 8.30 P.M. could not be accepted as probable as the fatal
assault had taken place at about 9.00 P.M. But the High Court has severely
criticised the evidence of this doctor observing that: "our impression is
that he hardiy knows what he is talking about and what is extraordinary is that
the less he knows the more assertive he is. No reliance what so ever can be
placed on such evidence and no conclusion can be drawn either adverse or in
favour of the prosecution from the opinion evidence of such a poorly qualified
medical witness". This comment by the High Court on the evidence of the
doctor appears to be more severe than what it should have been particularly when
his opinion that 'it was possible that the death in this particular case was
instantaneous' is not seriously challenged. In the circumstances of this case,
the scope for exaggeration on the part of the prosecution witnesses involving
innocent persons cannot also be ruled out. As we have pointed out earlier, the
High Court has missed some 279 important discrepancies in the prosecution case.
Bearing in mind the well-settled principles governing a case of this nature we
feel that it would be unsafe to act upon the evidence of Surjabai (P.W.2) and
convict the accused. In the circumstances, the High Court was in error in
upsetting the verdict of acquittal recorded by the trial court. We, therefore,
hold that the appeal of Ramji Surjya Padvi accused No. 2 (appellant No. 1)
should be allowed.
Having reached the above conclusion, we feel
that ends of justice require that we should suo motu recall the order
dismissing the appeal of Bhikji Surjya Padvi accused No. 4 (appellant No. 2) in
this appeal and acquit him also. We accordingly review the order dated August
18, 1980 of this Court dismissing his appeal and restore his appeal to the
file. It may be mentioned here that the learned counsel for the State fairly
conceded that if the appeal of accused No. 2 is to be allowed, accused No. 4
should also be released.
In the result we allow this appeal, set aside
the conviction of accused Nos. 2 and 4 (appellants Nos. 1 and 2) Ramjl Surijya
Padvi and Bhikji Surjya Padvi under section 302/34 of the Indian Penal Code and
the sentences of imprisonment for life imposed on them by the High Court and
restore the judgment of acquittal passed by the trial court.
Accused No. 2 and accused No. 4, the
appellants herein shall be released forthwith H.S.K. Appeal allowed.
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