TMI Blog1973 (8) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... man of village Kadamwadi, his quondum servant, the deceased Hariba, the alleged assailants (accused) Shivaji and Lalasaheb, the eye- witness 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 mutu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse. 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, in- formed, 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 com- prehensive consideration, In our view the High Court's judgment survives this exacting standard. Even at this stage we may rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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([1934] L. R. 61 I. A. 398.) 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h-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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted 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 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 &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 eye- brow 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 with- drawn. It is not as if every witness who has something to do with some part of the prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 un- impeachable 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. Info ..... X X X X Extracts X X X X X X X X Extracts X X X X
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