JUDGMENT
J.M. Panchal, J.
1. The learned Judges composing the Court of Appeal are equally divided in the decision to be rendered in Criminal Appeal No.1216 of 1984 filed by the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973 (“the Code” for short) against judgment dated June 2, 1984 rendered by the learned Additional Sessions Judge, Morbi, in Session Case No.5 of 1984 by which the respondent is acquitted of the offences punishable under Sections 302, 453, 324 of the Indian Penal Code (“the IPC” for short) and Section 135 of the Bombay Police Act, 1951 and, therefore, the appeal is laid before me under section 392 of the Code.
2. Halimaben Salim is a resident of village Navlakhi, District Rajkot. She has four sons. The name of eldest son is Aliyas whereas the name of the second son is Sumar. The name of son who is younger to Sumar is Dawood whereas the name of the youngest son is Hasam. Halimaben had three daughters. The name of the eldest daughter is Jannat whereas the name of second daughter was Rahima and the name of the youngest daughter is Sharifa.
3. The respondent is son of real sister of Halimaben and was married to Rahima, who was daughter of Halimaben. Aliyas, who is eldest son of Halimaben, is residing at Kandla and is married to real sister of the respondent. During the susbistence of marriage with the respondent, deceased Rahima had given birth to five children. The respondent was also residing at Kandla with his wife Rahima and children. The incident in question took place in the night between October 14 and 15, 1983. On October 13, 1983, i.e. the day prior to the date of the incident, deceased Rahima with her children had gone to her mother’s place at Navlakhi. On the night between October 14 & 15, 1983, the deceased and her children were sleeping with Sharifa, i.e. sister of the deceased in osari, i.e. verandah. One Valiben Tidabhai is residing near the house of Halimaben. Valiben and her family members were sleeping outside her house. It is the prosecution case that at about 1.30 to 1.45 a.m. on October 15, 1983, the respondent had come to the house of Valiben, and had tumbled over daughter of Valiben as a result of which, the daughter of Valiben had woken up and told that somebody was in the house. Thereupon, Valiben had also woken up and as the person who had intruded into her house was trying to go out of her house, she had given two fist blows. She could identify that the person who had intruded in her house was Abraham, i.e the respondent, and she had further seen that after leaving her house, the respondent had climbed the house of his father-in-law. Valiben had thereupon raised shouts telling that a thief had come and gone to wake up neighbours. The respondent made entry into the house of his father-in-law by lifting one of the sheet of roof and jumping into Oshri where deceased Rahima was sleeping with her sister, Sharifa. The case of the prosecution is that as the respondent had jumped into Oshri by lifting one of the sheets, a noise had taken place as a result of which, Sharifa was alerted. Sharifa saw that the respondent was armed with a knife. On seeing the respondent with knife, initially Sharifa had gone to embrace her sister Rahima, but was frightened and had gone out of the house towards Valiben who by that time had come near the house of Halimaben. Halimaben was also alerted and witnessed that the respondent after inflicting knife blows on Rahima was dragging her out of the house. Therefore, Halimaben had raised shouts as a result of which her son Sumar, who was sleeping outside the house, had woken up. When Halimaben tried to prevent the respondent from causing further injuries to Rahima, she was also injured. Sumar, who had tried to apprehend the respondent, was also injured in the incident. The case of the prosecution was that taking advantage of the darkness, the respondent had fled from the place of the incident, but left his slippers near the house of Halimaben. On commotion being raised, several persons including Abhu Kala, Ghanshyambhai, etc. had collected. Ghanshyambhai was asked to call Jamadar at the place of the incident whereas Abhu Kala had gone to bring a handcart for removing injured Rahima and injured Halimaben to the Hospital. Ghanshyambhai Motitlal in the company of Salemamad Noormamad had gone to call Jamadar. They had approached Mavji Dudabhai, who was serving at Maliya-Miyana Police Station. After learning about the incident, Police Constable, Mavji Dudabhai, had taken Ghanshyambhai and Salemamad to Gajubha Jorubha Jadeja, who was Police Head Constable discharging duties at Navlakhi Outpost. After ascertaining the facts about the incident, Gajubha had gone to the place of incident, and removed injured Rahima and injured Halimaben to the Government Dispensary, Navlakhi, in a handcart. During treatment Rahima succumbed to injuries, whereas Halimaben was referred to Morbi Government Hospital for further treatment. Police Head Constable, Gajubha Jadeja, had prepared an occurrence report on the basis of information given by Sumar. Thereafter, he had accompanied Sumar to Maliya-Miyana Police Station where First Information Report lodged by Sumar was recorded by PSI Pravinsinh Jadeja. During the course of investigation of the complaint of Sumar, statements of persons who were found to be conversant with the facts of the case, were recorded and panchnama of place of occurrence, inquest panchnama etc. were prepared. The dead body of deceased Rahima was sent for postmortem examination. The respondent had surrendered before the Police on November 3, 1983. Incriminating articles such as blood stained slippers of the respondent, clothes of the deceased, etc. were sent to Forensic Science Laboratory for analysis. After obtaining report of analysis and on completion of investigation, the respondent was chargesheeted in the Court of learned Judicial Magistrate First Class, Maliyaiyana, of the offences punishable under Sections 302, 457, 324 IPC and Section 135 of the Bombay Police Act. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Rajkot, for trial where it was numbered as Session Case No.5 of 1984.
4. The learned Additional Sessions Judge, Morbi, to whom the case was made over for trial, had framed charge against the respondent at Exh.1 of the offences punishable under Sections 302, 457, 324 IPC and Section 135 of the Bombay Police Act. The charge was read over and explained to the respondent, who had pleaded not guilty to the same and claimed to be tried. The prosecution had, therefore, examined : (1) Medical Officer of Government Dispensary, Morbi, Dr. Sukhdev Kuvardas Ramavat, as P.W.-1 at Exh.5; (2) Dr. Laxmanbhai Madhavdas Patel, Medical Officer of Government Dispensary, Navlakhi, who had examined injured Sumar Sidi and Halimaben, and had also performed autopsy on the dead body of the deceased Rahima as P.W.-2 at Exh.7; (3) Circle Inspector, Kunvarjibhai Popatbhai as P.W.-3 at Exh.10; (4) injured Sumar Sidi, who had also lodged complaint, as P.W.-4 at Exh.13; (5) Valiben Tidabhai as P.W.-5 at Exh.14; (6) eye-witness Sharifa Sidibhai as P.W.-6 at Exh.18; (7) Ghanshyam Motilal as P.W.-7 at Exh.19; (8) Salemamad Noormamad as P.W.-8 at Exh.20; (9) Manharlal @ Batuk Karsandash as P.W.-9 at Exh.21; (10) injured eye witness Halimaben as P.W-10 at Exh.23; (11) Savitaben Shamjibhai as P.W.-11, at Exh.24; (12) Sakambardatt Mangatram as P.W-12 at Exh.27; (13) Kedarnath Ramlochan as P.W.-13 at Exh.28; (14) Karshandas Premdas as P.W.-14 at Exh.30; (15) Pruthvisinh Umedsinh as P.W.-15 at Exh.32; (16) Naranbhai Kanjibhai as P.W.-16 at Exh.34; (17) Saiyed Basheer Abdul Rehman as P.W.-17 at Exh.35; (18) Lalji Karshandas as P.W.-18 at Exh.37; (19) Husein Hasambhai as P.W.-19 at Exh.39; (20) Abhu Kala as P.W.-20 at Exh.40; (21) Dhruvkumar Prahladsinh as P.W.-21 at Exh.41; (22) Husein Sidibhai as P.W.-22 at Exh.42; (23) Natubha Ravubha as P.W.-23 at Exh.43; (24) Aliyas Sidi as P.W.-24 at Exh.48; (25) Harun Mamad as P.W.-25 at Exh.49; (26) Mavji Dudabhai as P.W.-26 at Exh.50; (27) Gajubha Merubha Jadeja as P.W.-27 at Exh.51; and, (28) Pravinsinh Khimubha Jadeja as P.W.-28 at Exh.54, to prove its case against the respondent. The prosecution had also produced documentary evidence such as; certificate of injury of Halimaben at Exh.6; Postmortem Notes of deceased Rahima at Exh.8; map of scene of offence at Exh.12; inquest held on dead body of deceased Rahima at Exh.25; panchnama of place of occurrence at Exh.31; panchnama prepared at the time of arrest of the respondent at Exh.33; panchnama of person of Halimaben at Exh.44; panchnama of person of the respondent at Exh.46; complaint lodged by witness Sumar Sidi at Exh.52; panchnama of recovery of clothes of respondent; report of Serologist at Exh.56, etc. in support of its case against the respondent.
5. After recording of evidence of prosecution witnesses was over, the learned Judge had explained to the respondent the circumstances appearing against him in the evidence of prosecution witnesses, and recorded his further statement as required by Section 313 of the Code. In his further statement, the case of the respondent was that on October 15, 1983, he had gone to Ajmer on a pilgrimage and that eye witness Sharifa had wrongly identified him as perpetrator of crime, but the perpetrator of crime might be her husband. However, neither the respondent had examined himself on oath nor examined any witness to substantiate the defence raised in further statement.
6. On appreciation of evidence adduced by the prosecution, the learned Judge of trial Court noticed that according to the prosecution, the motive for commission of crime was that the respondent was suspecting the fidelity of the deceased who was his wife, and held that though the motive was pleaded, the prosecution had failed to prove the same, which was a relevant circumstance in favour of the respondent. According to the learned Judge, injured Halimaben did not state as to who had called witness Ghanshyam Motilal at the place of occurrence and that she had exaggerated the incident by stating that she had woken up witness Sumar Sidi though it was not so stated by witness Sumar Sidi and that she had not stated in her evidence that she had informed witness Sumar Sidi that the respondent had caused injuries by means of knife to deceased Rahima though it was so claimed by witness Sumar Sidi nor any reference was made by her to the presence of witness Valiben Tidabhai at the place of incident and, therefore, it was doubtful whether she was able to identify the respondent as perpetrator of crime. The learned Judge found that the claim of witness Sharifa Sidi that lights were on in the osari and falia was not acceptable as the evidence of witness Sumar Sidi and witness Halimaben indicated that there was darkness in the house and that it was doubtful whether Sharifa was able to identify the respondent as assailant of her sister. According to the learned Judge, the complaint was not lodged at the time mentioned in it at Maliya-Miyana Police Station and that so-called occurrence report prepared by witness Gajubha Jadeja was a got up document. The learned Judge noticed that witness Valiben had referred to the presence of the respondent at her house initially, but had thereafter raised shouts indicating that a thief had come and concluded that if Valiben had seen the respondent in her house, she would not have shouted that a thief had come and, therefore, her claim that the respondent had come to her house was not reliable. Further, on appreciation of evidence of Valiben, it was held by the learned Judge that there was no sufficient light at the time when the respondent had allegedly entered into her house nor had she informed Halimaben that the respondent had come to her house and, therefore, Valiben had no opportunity to identify the respondent as the person who had entered into her house. According to the learned Judge, statement of witness Valiben was recorded on third day of the incident and in view of the drawbacks noticed in her evidence, her evidence was not inspiring confidence of the Court. The learned Judge noticed that Halimaben did not state in her evidence that an attempt was made by witness Sharifa Sidibhai to embrace the deceased though it was so claimed by witness Sharifa nor Sharifa had disclosed the name of the respondent as assailant to witness Valiben and, therefore, her testimony before the Court was doubtful. The learned Judge noticed that statement made by witness Sharifa Sidibhai indicated that it was only when her mother Halimaben was injured with knife that her mother had realised that the respondent had used knife in the incident and held that the claim of witness Sharifa Sidibhai that lights were on in osari and faliya was liable to be rejected because if the lights had been on, Halimaben would have realised immediately that the respondent was armed with the knife. The learned Judge held that though it was stated by witness Sharifa that at the place of the incident two slippers were found, it was not stated by her that the slippers were of the respondent and in view of her admission made in cross-examination to the effect that she had not witnessed as to what had happened in the osari, her evidence was of little assistance to the prosecution. According to the learned Judge, the claim of Halimaben before the Court was that on receiving the injury she had fainted and if that was so, it was not possible for her to witness as to who had, in fact, mounted assault on the deceased and thus, it was doubtful whether the incident was witnessed by her. Further, the learned Judge noticed the lapse on the part of witness Halimaben in not narrating the history of the incident nor naming the respondent as her assailant and assailant of the deceased before Doctor who had treated her, and concluded that her evidence was not reliable. On perusal of testimony of witness Salemamad Noormamad, it was noticed by the learned Judge that his claim that he was instructed by Halimaben to inform Gajubha Jadeja that the respondent had assaulted deceased Rahima and had run away was not worthy of acceptance as Halimaben had never stated in her evidence that she had instructed witness Salemamad Noormamad to inform Gajubha about the incident. It was noticed by the learned Judge that it was stated by Ghanshyambhai Motilal that Sumar and Halimaben had asked him to call Gajubha at the place of incident because their son-in-law had run away after inflicting blows of knife on Rahima and as the name of the respondent was not disclosed as assailant, the claim of witness Salemamad Noormamad that he was asked by Halimaben to call Gajubha as the respondent had run away after inflicting the blows on deceased Rahima, was not acceptable. On appreciation of evidence of witness Abhu Kala the learned Judge found that he was a got up witness because his presence at the place of incident was not referred to either by witness Ghanshyambhai Motilal or witness Mavji Dudabhai. According to the learned Judge, the evidence of witness Mavjibhai was also not reliable because though he was informed about the incident, he had not reduced the information into writing. What was noticed by the learned Judge was that the complaint was lodged by witness Sumar Sidi after unreasonable delay whereas report under Section 157 of the Code was forwarded to the learned Magistrate on October 19, 1983, after unreasonable delay, which was not explained and, therefore, false involvement of the respondent in the case was not ruled out. On appreciation of evidence of Mavjibhai and that of witness Gajubha, it was held by the learned Judge that Mavjibhai had not disclosed the name of the respondent as assailant of deceased Rahima to Gajubha and, therefore, neither the evidence of Mavjibhai nor the evidence of Gajubha was reliable. One of the reasons for disbelieving the testimony of witness Mavjibhai assigned by the learned Judge was that he had failed to make entry in Station Diary. According to the learned Judge, the evidence of Aliyas was of little assistance to the prosecution because he was neither informed by any one nor by witness Sumar that the respondent had assaulted the deceased. The learned Judge noticed the testimony of witness Sakambardatt Mangatram indicating that the respondent was absent from duty since October 1, 1983 and deduced that absence of the respondent from duty would not establish that the respondent was present at the place of the incident. The learned Judge held that though the slippers were bearing blood group “B” which was also the blood group of the deceased, no reliable evidence was adduced to establish that the slippers were belonging to the respondent, and concluded that find of blood on slippers having same group as that of the deceased was not an incriminating circumstance against the respondent. The learned Judge deduced that the relations between the eye witnesses who were close relatives of the deceased and the respondent were most cordial whereas relations of Halimaben and Sharifa with the husband of Sharifaben were strained and, therefore, possibility that husband of Sharifaben might have assaulted the deceased was not ruled out. In view of the abovereferredto findings, the learned Judge held that the respondent was entitled to a reasonable benefit of doubt and has acquitted him by judgment dated June 2, 1984 giving rise to instant appeal.
7. As noticed earlier, in view of division in opinion between the learned Judges hearing the appeal, this appeal has been laid before me as required by Section 392 of the Code. In Mattar v. State of U.P., (2002) 6 SCC 460, the Supreme Court has examined the scope of Section 392 of the Code and held that where the judges in different dissenting opinions have given detailed reasons, for and against the acceptance of version as deposed to by the witnesses, the third Judge is required to independently examine the matter and express his opinion. Accordingly, the matter is independently examined by me.
8. Mr. K.C. Shah, learned Additional Public Prosecutor for the State, vehemently contended that the injured eye witnesses who are closely related to the respondent as well as the deceased would not implicate the respondent falsely in the case more particularly when the relations between the eye witnesses and the respondent were excellently cordial nor would they allow the real culprit to go scot-free and, therefore, the prosecution case should have been accepted by the learned Judge. According to the learned counsel of the State Government, the conduct of Halimaben and Sumar to make attempt to save deceased Rahima from further injuries was natural one in which they had received injuries and, therefore, the learned Judge was not justified in brushing aside their testimonies on flimsy grounds which have no factual basis. After referring to the testimony of witness Sharifa it was argued by the learned Additional Public Prosecutor that she was sleeping by the side of the deceased and had ample opportunity of identifying the respondent who had jumped into the osari by removing a sheet of the roof and, therefore, there was no reason to doubt her testimony that the respondent had inflicted blows with knife on the deceased. What was maintained by the learned Additional Public Prosecutor was that there was neither unreasonable delay in lodging the complaint nor unreasonable delay in dispatching the same to the learned Magistrate as required by Section 157 of the Code because October 16 & 17, 19873 were public holidays and, therefore, no benefit should have been given to the respondent on the ground that there was possibility of false implication of the respondent in the case. According to the learned APP, witness Sumar Sidi and witness Halimaben had received injuries at the hands of the respondent at the time of incident and, therefore, evidence tendered by these witnesses, who are natural witnesses, should have been accepted by the learned Judge. It was argued by the learned Additional Public Prosecutor for the State Government that it was specifically stated by Halimaben that slippers found at the place of the incident were belonging to the respondent, which statement was not challenged at all in her cross-examination and as find of same blood group as that of the deceased on slippers was not explained by the respondent in his statement under Section 313 of the Code, it should have been held that it was an incriminating circumstance, which lent independent corroboration to the testimony of eye witnesses. It was argued that the false plea of alibi raised by the respondent was not even probablised and, therefore, that circumstance should be taken into consideration by the Court along with other evidence on record for ascertaining the guilt of the respondent. The learned Additional Public Prosecutor emphasised that doubts nurtured by the learned Judge are fanciful and do not grow out of the evidence in the case and, therefore, the impugned judgment should to be set aside. In support of these submissions, the learned counsel has placed reliance on the decision in State of Punjab v. Karnail Singh, JT 2003 (7) SC 453.
9. Mr. J.G. Shah, learned Senior Advocate of the respondent, emphasised the principles to be kept in mind by the appellate Court namely; (1) every hypothesis of innocence of the accused has to be ruled out; (2) burden of proving the guilt of the accused is heavy on prosecution and the accused is not supposed to prove his innocence; and (3) if evidence on record of case is such as would create reasonable doubt in mind of Court with regard to guilt of the accused, benefit of doubt should be given to the accused, and pleaded that as the reasons assigned by the learned Judge while according benefit of doubt to the respondent are neither perverse nor such which could not have been recorded by a reasonable person, appeal should be dismissed. Learned counsel of the respondent explained the scope of power of High Court to interfere with in an acquittal appeal by citing decision in C. Antony v. K.G. Raghavan Niar, (2003) 1 SCC 1, and contended that unless High Court comes to a definite conclusion that the findings of the trial Court are either perverse or the same are contrary to the material on record, the High Court would not be justified in upsetting the acquittal nor is entitled to substitute its findings merely because another contrary opinion is possible based on the material on record. It was argued that as the view expressed by the learned Judge is reasonable one, the impugned judgment should be upheld. After explaining the principle in Mulavani Kannan & Anr. v. State of Kerala, (2002) 10 SCC 172 to the effect that High Court cannot interfere with the finding concerning credibility of witnesses unless there are strong and cogent reasons, it was argued that as there are no strong and cogent reasons available on record, the finding concerning credibility of witnesses recorded by the learned Judge who had advantage of observing demeanour of the witnesses should not be upset by this Court. On merits, it was argued that the evidence of Valiben does not indicate that she had opportunity of identifying the respondent as the person who had intruded into her house, because lights in her house were off whereas the night was dark and though it was claimed by her that the person who had intruded into her house was the respondent, she had raised shouts that a thief had come and, therefore, no error is committed by the learned Judge in discarding the evidence of witness Valiben. Regarding evidence of Sharifa, it was argued by the learned counsel of the respondent that her case that lights were on in faliya and osari was rightly disbelieved by the learned Judge because the evidence of witness Sumar indicates that there was darkness and as witness Sharifa had not seen the person who had jumped into osari after lifting a sheet of roof, her evidence was of little assistance to the prosecution. According to the learned counsel of the respondent, her evidence would indicate that she was sleeping in osari with deceased Rahima whereas others were sleeping in room, but the evidence of her mother, Halimaben, shows that all were sleeping in osari and in view of this contradiction, her evidence was not reliable. It was also argued that the version of the incident, as narrated by witness Sharifa, differs from story told by witness Valiben and, therefore, it was not safe to act upon the evidence of witness Sharifa. So far as evidence of witness Sumar is concerned, it was contended that he was sleeping outside the house and had no opportunity of identifying the respondent as assailant, but his evidence clinchingly establishes that he had learnt about the name of the assailant only when he was informed by his mother, Halimaben, whereas evidence of witness Halimaben shows that on receiving injuries, she had fainted and re-gained consciousness only after three days, which makes doubtful the claim of witness Sumar that he was informed by his mother that the respondent was assailant and, therefore, the learned Judge of the trial Court was justified in not acting upon the testimony of witness Sumar. So far as evidence of Halimaben is concerned, it was argued that her claim that she had gone to wake up Sumar does not get support from testimony of Sumar and in view of contradiction with regard to where the family members were sleeping, it was not safe to act upon her sworn testimony. What was contended was that it was darkness which had made it impossible for witness Halimaben and others to identify the assailant, and as there was delay in lodging the complaint and forwarding the report to learned Magistrate under Section 157 of the Code, false implication of the respondent in the case was not ruled out. It was maintained by the learned counsel of the respondent that no acceptable evidence was adduced to establish that the slippers found at the place of incident were of the respondent and, therefore, find of the same blood group on slippers as that of the deceased is rightly not treated as one of the incriminating circumstances against the respondent. It was emphasised that though the plea of alibi is not probablised by the respondent, the same cannot be used against the respondent more particularly when the prosecution has failed to establish its case against the respondent and, therefore, the appeal should be dismissed.
10. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. It is well settled that although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should always give proper weight and consideration to such matters as (i) views of the trial Judge as to the creditability of witnesses; (ii) presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted by the trial Court; b (iii) right of the accused to the benefit of any reasonable doubt, and (iv) slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge, who had advantage of seeing the witnesses. It is well settled that where two reasonable views can be drawn on the evidence on record, the High Court, as a matter of judicial caution, would refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. However, there is no manner of doubt that the appellate Court has full power to review an order of acquittal and to come to its own conclusion in appeal against the acquittal. The only requirement that the appellate Court must observe is that while dealing with the order of acquittal, the appellate Court should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the trial Court in support of its order of acquittal, but it should also express its reasons which lead it to hold that order of acquittal is not justified. There is no manner of doubt that when the view taken by the trial Court is found by the High Court to be manifestly wrong and that it has led to miscarriage of justice, the High Court is entitled to set aside the acquittal and convict the accused. Having noticed the scope of powers of High Court in an acquittal appeal, it would be worthwhile to notice salient features of evidence of relevant witnesses though re-production of their evidence in judgment is not warranted in the facts of the case.
11. The fact that the deceased Rahima had died a homicidal death is not disputed on behalf of the respondent. It is not the case of the respondent that the deceased had died either a suicidal death or an accidental death. Even otherwise, evidence on record clearly establishes that the deceased had died a homicidal death. The manner in which the deceased had sustained injuries is narrated by her close relatives. The injuries which were sustained by the deceased have been noticed in inquest panchnama which is produced on record of the case at Exh.25. Further, autopsy on the dead body of the deceased was performed by Dr. Laxmanbhai Patel, who was Medical Officer of Government Dispensary, Navlakhi. In his substantive evidence, which is on record at Exh.7, he has enumerated in detail external as well as internal injuries which were noticed by him while performing autopsy on the dead body of the deceased. The Medical Officer stands completely corroborated by postmortem notes of deceased produced at Exh.8. The medical evidence on record shows that deceased had died because of shock due to internal haemorrhage and due to injuries to right lung and right pulmonary vein. Thus, the finding recorded by the learned Judge of the trial Court that the deceased had died a homicidal death is eminently just and is hereby upheld.
12. The evidence of witness Sumar Sidi, P.W.-4, Exh.13, would indicate that he was real brother of deceased Rahima and also cousin of the respondent. He had attended `mazlish’ on the date of incident and returned home at about 10.30 p.m. His evidence would indicate that he was sleeping outside the house while incident of assault on deceased Rahima had taken place inside the house. It may be stated that this witness is completely illiterate and he had put thumb impression on his complaint. The learned Judge has made an observation that he was giving answers haltingly. The reason may be that he was not well conversant with Gujarati language because he was Kuchchee and conversant with that language. However, certain facts mentioned in the complaint were omitted to be stated by this witness. Therefore, the learned Additional Public Prosecutor conducting the case had requested the learned Judge to permit him to point out relevant part of his complaint, but the said prayer was rejected by the learned Judge on specious ground that such a request was not made by witness himself and such a course was not permissible. This Court finds that when witness Sumar Sidi was totally illiterate, it would have been better if the learned Judge had permitted to refresh his memory by permitting the learned Public Prosecutor to draw the attention of witness to facts stated in the complaint. The evidence of this witness would indicate that he himself had received injuries and, therefore, his presence at the place and time of the incident can hardly be doubted. The discrepancy as to whether he was awakened by his mother or he was awakened because of commotion which had taken place is totally immaterial and the reasons assigned by the learned Judge for disbelieving his testimony are contrary to well accepted principles of appreciation of evidence. However, there is no manner of doubt that in view of categorical admission made by this witness to the effect that he was informed by his mother that the respondent had inflicted knife blows to deceased Rahima, it would be difficult to consider him as an “eye witness” to the incident.
13. So far as evidence of witness Valiben is concerned, this Court finds that she is residing in the house just adjoining the house of Halimaben. It may be stated that Navlakhi is a small village and, therefore, the claim of Valiben that she was knowing the respondent as son-in-law of Halimaben does not create any doubt. The evidence of Valiben shows that during the night time, the respondent had intruded into her house and she was awakened when the respondent had tumbled over her daughter. Her claim was that she had identified the person who had intruded into her house as the respondent and had given two fist blows to him as a result of which, the respondent had left her house. Her case that she had given two fist blows to the respondent is not seriously challenged in her cross-examination. Merely because she had shouted that a thief had come would not make her version doubtful when it was asserted by her that the respondent had intruded into her house. The reason given by the learned Judge to doubt her version on the ground that there was darkness inside and outside her house and that she had no opportunity of identifying the respondent as intruder in her house is not well founded inasmuch as the incident had taken place during Navratri Festival and villagers are accustomed to identify the persons even in darkness. It is true that in her examination-in-chief, it was claimed by her that she had seen that the respondent had entered the house of Halimaben and in cross, it was stated by her that she had not seen the respondent entering into house of Halimaben. However, some contradictions in the testimony of a witness are natural and may be due to power of observance, length of time after which evidence is recorded etc., but there is no reason to doubt her claim that the respondent had intruded into her house and that thereafter the respondent had proceeded towards the house of Halimaben. It is worthwhile to note that this witness is neither related to Halimaben nor on inimical terms with the respondent and, therefore, she had no reason to depose falsely against the respondent. One of the reasons given by the learned Judge for disbelieving the sworn testimony of this witness was that her police statement was recorded after three days of the incident. However, evidence of Investigating Officer would indicate that her statement was recorded on the day of filing of complaint itself. Even if it is assumed for the sake of argument that her police statement was recorded on third day after the incident, her testimony would not become doubtful more particularly when no explanation was sought from the Investigating Officer as to why her statement was not recorded on the day of filing of the complaint and was recorded on the third day of the incident. This is so in view of decision of the Supreme Court in Ranbir & Ors. v. State of Punjab, A.I.R. 1973 SC 1409. In the above quoted decision, the Supreme Court has ruled that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case and it is essential that the investigating officer should be asked specifically about the delay and the reasons therefor. What is emphasised therein is that evidence of a witness does not become untrustworthy merely because he was examined after delay by the investigating officer. So far as instant case is concerned, it could not be suggested that Valiben was a got up witness to falsely support the prosecution case. As observed earlier, the investigating officer was not asked specifically about the delay and reasons therefor, though his evidence indicates that the police statement of Valiben was recorded on the date on which the complaint was filed and there was no delay at all in recording her statement. Under the circumstances, this Court is of the firm opinion that the learned Judge was not justified in disblieving the sworn testimony of Valiben on specious plea that her statement was recorded on 3rd day of the incident. As noticed earlier, no suggestion was made to this witness by the defence that she was on inimical terms with the respondent, and that she was out to implicate the respondent falsely in the case. On reappreciation of evidence, this Court finds that sworn testimony of witness Valiben is acceptable.
14. The evidence of Sharifa, PW.6 would indicate that she had left her husband’s house and was residing with his mother at Navlakhi. As per her claim, the incident in question had occurred at about 2.00 A.M., though it is evident from her testimony that she had not seen as to who had removed iron-sheet of roof of osari. She has emphatically stated in her deposition that as the respondent had jumped in the osari, she was awakened and that the respondent had a knife in his hand. It is further stated by her that first of all she had gone towards his sister Rahimaben, but as she was afraid of the respondent who was armed with knife, she had gone out of the osari at the place where Valiben was standing. She has categorically stated in her testimony that the respondent had inflicted knife blows on her sister Rahimaben and had also injured her mother and brother who had attempted to save Rahimaben. It is also claimed by her that respondent had dragged deceased Rahimaben and brought her outside, which stands completely borne out from the contents of panchnama of place of incident. What is relevant is that this witness has emphatically stated that deceased Rahimaben had told her that the respondent was suspecting her character. The learned Judge has held that the prosecution has failed to prove motive which prompted the respondent to commit crime and when the prosecution alleges the motive, but fails to prove it, such failure becomes a relevant factor. With some experience of life it is not difficult to appreciate the claim advanced by Sharifa that deceased had told her that the respondent was suspecting her fidelity. Normally, a sister would confide in her sister and tell everything about her private life. Merely because the deceased had not disclosed the fact that the respondent was suspecting her fidelity, either to her mother or to other members of her family, would not render the claim of Sharifa that the deceased had told her that the respondent was suspecting her fidelity, doubtful in any manner. It is relevant to notice that what is borne out from the evidence of witness Sharifa is that the respondent was person who had helped her in initiating maintenance proceedings against her husband and provided all possible help. Thus, Sharifa was under obligation of respondent. Under the circumstances, it is highly improbable that she would falsely implicate the respondent in such a serious case and would allow the real culprit to go scot free. Merely because deceased Rahimaben had not disclosed or discussed about the conduct of the respondent in suspecting her character with other members of the family, that fact by itself would not make a dent in the prosecution case so far as motive stated by witness Sharifa is concerned. Therefore, the learned Judge was not justified in disbelieving the case of prosecution regarding motive which had prompted the respondent to commit the crime. The fact that the relations between Sharifa and her husband were strained or that her husband had in past assaulted her mother Halimaben with stick and administered threat would not indicate that her husband was the person who had committed crime in question. Her evidence would indicate that relations between her and her husband as well as her mother and her husband were strained and, therefore, if any attempt had been made as suggested by the defence to commit crime by the husband of this witness, he would have assaulted either this witness Sharifa or her mother Halimaben, but would not have assaulted the deceased. The plea that it was a case of mistaken identity so far as husband of Sharifa is concerned is far-fetched and cannot be accepted. Though it is admitted by her in her cross-examination that she had not seen blows being inflicted on her sister Rahimaben, her evidence read as a whole clearly establishes that the respondent had entered the house of her mother by removing sheet of roof and inflicted blows on the deceased and also injured her mother and her brother, who had attempted to save her sister.
15. Another injured witness examined by the prosecution, namely, Halimaben is mother of deceased Rahimaben. This witness has, in terms, stated that on shouts being raised by Valiben, she was awakened and had seen the respondent inflicting knife blows to her daughter Rahimaben. According to this witness, she had raised shouts, as a result of which her son Sumar, who was sleeping outside, was awakened and she had received injuries when she had attempted to save Rahima. According to her, her son Sumar had also tried to save his sister Rahima and in that process, had received injuries. It is well to remember that she stands completely corroborated by the medical evidence on record. Dr. Sukhdev Ramavat of Government Dispensary, Morbi, has issued certificate of injury of Halimaben, which is at Exh.6. Halimaben was also examined by Dr. Laxmanbhai Patel, who was then Medical Officer, Government Dispensary, Navlakhi. Even if it is assumed for the sake of argument that the claim of Sharifa that lights were on in the osari and falia, does not inspire confidence of the Court, there is no manner of doubt that the respondent was properly identified by Halimaben, who is her son-in-law. Identification of an accused in moonless night is not impossible. If accused can identify the victim, witness can identify accused also. Further, it is well settled that visibility capacity of urban people is not standard to be applied to villagers. As noticed earlier, relations of this witness with the respondent were most cordial and, therefore, she had no reason whatsoever to implicate the respondent falsely in the case. In fact, the evidence of witness Sharifa would indicate that Halimaben in past was assaulted by husband of Sharifa and, therefore, inclination on the part of this witness would be to implicate the husband of Sharifa, but this rustic woman has not done so and categorically stated that the respondent was the person who had assaulted her daughter Rahima fatally and also injured her and her son. The evidence on record shows that the respondent who was son-in-law of Halimaben, was dear to her. It is inconceivable that Halimaben to whom respondent was dear and who was father of five children of her daughter, would be falsely implicated by her in the case knowing fully well that the children had lost their mother, whereas her testimony against the respondent was likely to send the respondent in jail for life. Nor there is possibility that she would allow another son-in-law i.e. husband of Sharifa, to go scot free, more particularly when her relations with him were strained. It is relevant to notice that on the date of incident she was sleeping near her two daughters and children of deceased Rahima. She has categorically stated that on seeing knife in the hands of respondent, her daughter Sharifa was frightened and had run away from the house towards Valiben. She has narrated the manner in which blows were inflicted by the respondent on the deceased which stands supported by injuries noticed at the time of performing autopsy on the dead body of deceased Rahima. Further, her case that the deceased had left his slippers at the place of incident is not challenged by the defence in her cross-examination at all. Therefore, the learned Judge was not justified in coming to the conclusion that it was not established by the prosecution that slippers found at the place of the incident were belonging to the respondent. What is claimed by her is that there was electric connection and that in the night of incident lights were on in the house as well as in the osari. Therefore, claim of Sharifa that lights were on in osari and falia stands corroborated by the evidence of witness Halimaben. One of the reasons assigned by the learned Judge for disbelieving testimony of this witness is that she had not narrated before the Doctor, who had treated her, that her daughter Rahima and she herself, were assaulted by the respondent. It is well established that a medical officer is not expected to know as to who were assailants of injured or the deceased. [See: P. Babu and others v. State of A.P.,(1994)1 SCC 388, and Pattipati Venkaiah v. State of Andhra Pradesh, AIR 1985 SC 1715]. Therefore, on such untenable grounds, otherwise reliable and natural testimony of Halimaben could not have been discarded. Her claim that she had fainted and regained consciousness after 3 days is an exaggeration. However, evidence of the doctor who had treated her would indicate that she had not received serious injuries nor had she become unconscious. Therefore, her claim that she had lost consciousness will have to be regarded as an exaggeration. Further, the tenor of cross-examination of this witness would indicate that immediately after the incident this witness was talking and had not lost consciousness. The evidence of Ghanshyambhai read with that of Abhu Kala would indicate that they were told to inform about the incident to Gajubha by witness Halimaben. This would mean that Halimaben had not lost consciousness at all. Under the circumstances, the claim of witness Sumar that he was informed by his mother that the respondent had inflicted blows on his sister Rahima could not have been disbelieved on the ground that Halimaben herself had become unconscious and was not able to speak anything. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit would be available to the defence. In the deposition of witness there are always normal discrepancies, however, honest or truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time and/or due to mental disposition, shock and horror at the time of occurrence and the like. It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. However, the evidence which gets corroboration from other evidence on record and also from independent evidence cannot be discarded because a witness has made some exaggerations. Therefore, evidence of witness Halimaben could not have been disbelieved after over emphasising discrepancies which were trivial in nature. The fact that she had not stated in her police statement that after assault the respondent had run away or that she had not gone to awake her son Sumar and that her son Sumar was awaken because of commotion, would not go to establish that she was not a truthful witness. It is relevant to notice that she is not only mother of the deceased, but real aunt of the respondent. First of all she was aunt of the respondent and with the passage of time the respondent had become her son-in-law. As noticed earlier, the case of the defence is that relations of Halimaben with her son-in-law were most cordial and that the respondent had helped Sharifa in instituting maintenance case against her husband. If this is so, Halimaben would not implicate the respondent falsely in such a serious case, nor would allow the real culprit to go scot free. Therefore, this Court is of the firm opinion that on the basis of minor discrepancies appearing in the evidence of this witness, her evidence could not have been discarded.
16. Coming to the evidence of witness Abhu Kala, this Court finds that immediately after the occurrence of incident he had gone to the place of incident where others, such as, Ghanshyambhai Motibhai etc. were present. This witness has stated in his deposition recorded at Exh.40 that on the date of incident at about 2.15 A.M. in the morning he was going to toilet and had gone to the house of Halimaben, as shouts were raised. According to this witness, he had asked deceased Rahimaben as to what had happened and Rahima had replied that her husband had come and gone away after inflicting blows. This witness has further stated that he had also asked Halimaben as to what had happened and Halimaben had replied that it was the respondent. According to this witness, Sumar had asked him to call Gajubha Jamadar at the place of incident and that he had seen slippers and watch lying at the place of incident. The witness has narrated as to how injuries were received by deceased Rahimaben. It was also stated by the witness that Halimaben and Sumar had also received injuries. According to him, on inquiry being made, witness Sumar had informed him that the respondent had given knife blows to him and had run away. In cross, this witness has stated that his usual time to go to toilet is about 6.00 A.M. and that he had neither eaten much nor was suffering from diarrhoea on October 15,1983. What he has claimed is that he had habit of visiting toilet at 2.00 A.M. in the morning on every 15th day of a month. In cross-examination, it was stated by the witness that he had called Gajubha and that Gajubha had asked him and reduced into writing the replies given by him. According to him, because of shouts he had not visited the toilet. He denied the suggestion of defence that his statement was not recorded on October 19, 1983. He also denied suggestion that witness Sumar and witness Halimaben had not informed him that they were assaulted by the respondent and that he was giving false evidence in Court. The most relevant thing to be found from testimony of this witness is that his assertion that on being asked, deceased Rahima had told him that her husband had inflicted blows on her was not challenged by the defence in cross-examination of this witness at all. The oral dying declaration made by deceased before witness Abhu Kala stands amply proved through the evidence of this witness. It is well settled that where evidence of witness is allowed to go unchallenged with regard to a particular point, it may safely be accepted as true. The evidence tendered by witness Abhu Kala regarding oral dying declaration made by the deceased before him is allowed to go unchallenged and, therefore, it will have to be accepted as true. The finding recorded by the learned Judge that witness Abhu Kala is a got up witness is not borne out from the record of the case. Presence of this witness at the place of incident immediately after occurrence is referred to by several persons. It could not be suggested to this witness that he was on inimical terms with the respondent. It is not the case of the defence that Abhu Kala is related either to the deceased or to Halimaben or witness Sumar. Under the circumstances, a question arises as to why and on what grounds the deposition of this witness should be disbelieved. As observed earlier, defence could not bring anything on record during cross examination of this witness, which would shake his version about the dying declaration made by deceased Rahima to him. It is relevant to notice that witness Gajubha Jadeja has also stated that witness Abhu Kala with police constable Mavjibhai had come to his house. Therefore, claim advanced by the witness Abhu Kala that he was asked by Halimaben and by Sumar to bring Gajubha Jadeja at the place of incident gets corroboration from the sworn testimony of witness Gajubha Jadeja. A reading of testimony of this witness makes it evident that he has narrated the facts in natural manner and there are no major discrepancies or omissions or improvements on the basis of which his evidence can be discarded. Under the circumstances, independent evidence of witness Abhu Kala could not have been discarded branding it as a got up evidence. The evidence of Abhu Kala also lends corroboration to the sworn testimonies of three witnesses, namely, Sumar, Sharifa Sidi and Halimaben. It is true that the prosecution had examined several witnesses to establish that on the day of incident the respondent was in Navlakhi town and that he had left the town with blood-stained clothes. However, those witnesses have not supported the prosecution case and turned hostile, but their turning hostile does not make any dent in reliable testimonies of other witnesses, more particularly in the evidence tendered by close relative of the deceased.
17. The learned trial Judge has brushed aside the evidence tendered by the prosecution regarding finding of same blood-group as that of deceased on slippers by holding that it was not established by the prosecution that slippers were belonging to the respondent. However, witness Halimaben has in terms stated that slippers which were blood-stained and which were found at the place of incident were belonging to the respondent. This claim of Halimaben is not disputed by the defence at all. No questions were put to Halimaben to challenge her claim that slippers found at the place of incident were belonging to the respondent. The slippers were seized under a panchnama and sent to Forensic Science Laboratory for analysis. The report of analyst indicates that slippers had the same blood-group as that of the deceased. This is an incriminating circumstance against the respondent. The respondent has not offered any explanation as to how same blood-group as that of the deceased was found on his slippers. The discovery of blood of the same group on the slippers of the respondent would indicate that the respondent was in close proximity of the deceased when she was fatally wounded and that the respondent had every opportunity to commit crime. Further, this independent incriminating circumstance, lends corroboration to the evidence of three star eye witnesses.
18. A fair reading of the judgment of the trial Court makes it evident that one of the factors which has heavily weighed with the learned Judge in giving benefit of doubt to the respondent is that though the incident had taken place at 2.00 A.M. on October 15, 1983, the complaint was lodged at about 7.00 A.M. which was after unreasonable delay and that report under section 157 of the Code was forwarded to the learned Magistrate on October 19, 1983, which did not rule out false implication of the respondent in the case. So far as delay in lodging the complaint is concerned, evidence of witnesses indicates that after the incident was over, neighbours, such as, Abhu Kala, Ghanshyambhai etc. had collected near the place of incident and that Abhu Kala and Ghanshyambhai were asked by Halimaben and Sumar to bring police constable Gajubha at the place of incident. The evidence of witness Abhu Kala and Ghanshyambhai shows that they had gone to the house of Mavjibhai, who is examined as PW.26 at Exh.50. The evidence of witness Mavjibhai shows that he is an Armed Constable and was serving at Navlakhi Outpost. This witness in the company of witness Abhu Kala and witness Ghanshyambhai had gone to the house of Gajubha and informed Gajubha about the incident. On learning about the incident, Gajubha had come to the place of incident and made arrangements for sending injured Halimaben and deceased Rahima to Government Dispensary, Navlakhi for treatment. Police Constable Gajubha had also prepared occurrence report on the basis of information conveyed to him by witness Sumar. His evidence read with the evidence of witness Sumar Sidi would indicate that thereafter he had taken witness Sumar to Malia-Miyana Police Station, which is 40 KMs. away from village Navlakhi where the complaint was lodged by witness Sumar Sidi, which was reduced into writing by P.S.I. Mr. Jadeja. Naturally, all these steps would consume considerable time. Incident had taken place at about 2.00 A.M. whereas complaint was lodged at 7.00 A.M. at Malia-Miyana Police Station, which by no stretch of imagination, can be regarded as delayed complaint. Therefore, it was wrong on the part of the learned Judge to conclude that delay in lodging complaint indicated that after deliberations name of the respondent was disclosed as assailant of deceased Rahima. Further, taking note of fact emerging from calendar for the year 1983, it is evident that October 15, 1983 was a Saturday and the investigating officer had prepared panchnama of place of incident and made arrangements for sending dead body of the deceased for postmortem examination etc. October 16, 1983 and October 17, 1983 were public holidays on account of Sunday and Muharam respectively. The respondent was absconding. Under the circumstances, if copy of F.I.R. reached the Court of learned Magistrate on October 19, 1983, it cannot be said that there was unreasonable delay. The conclusion drawn by the learned Judge to the effect that there was unreasonable delay in sending report under Section 157 of the Code, which indicated that the respondent was falsely implicated in the case is far-fetched and contrary to the weight of evidence on record. Therefore, the same is liable to be set aside and is hereby set aside.
19. The last point which deserves consideration of the Court is that according to the respondent on the date of the incident he was neither in Kandla where he was residing nor at village Navlakhi where the incident had taken place, but he had gone to Ajmer on a pilgrimage. It may be stated that except making a bald assertion in further statement recorded under Section 313 of the Code, no evidence could be adduced by the respondent to substantiate his claim that he was not present in Navlakhi town when the incident had taken place and was present somewhere-else. Though it is for the accused who pleads alibi to prove it in view of the provisions of Section 103 of the Evidence Act, burden is not as heavy as is on prosecution to prove its case beyond reasonable doubt and defence of alibi can be probablised also. However, no attempt was made by the respondent to even probablise his defence of alibi. One of the prosecution witnesses examined is Aliyas Sidibhai, PW.24 at Exh.48. This witness has stated that he had gone to village Vandi at the house of his mother-in-law i.e. the mother of the respondent. According to this witness, he had reached house of his mother-in-law at 8.15 P.M. on October 15, 1983 and that at that time the respondent was present in the house. It is also claimed by this witness that he had found that both the hands of the respondent were injured and, therefore, he had asked the respondent as to how he was injured and the respondent had replied that he was injured by door of taxi. It is also stated by this witness that on hearing this reply from the respondent, he had remarked that taxi-door would injure only one hand and not both hands and that thereafter one Keshu Abu had informed him that some fighting had taken place at village Navlakhi. The claim made by this witness that he had found the respondent present in his house located at village Vandi at 8.00P.M. on October 15, 1983 is not challenged by the defence at all, which completely destroys the defence of alibi pleaded by the respondent. It is relevant to notice that when PW.24 claimed that the accused was present at his house located at village Vandi, the respondent could have examined his mother to establish that he was not present at village Vandi in the evening of October 15, 1983, but, no such attempt was made by the respondent at all. Thus, there is no manner of doubt that a false plea of alibi was raised by the respondent. This by itself may not show that the respondent was the person who had committed crime, but read with other evidence on record becomes relevant. Even otherwise, the incident in question had taken place between 1.30 A.M. and 2.00 A.M. in the morning of October 15, 1983. Therefore, it was not impossible for the respondent to go to Ajmer on the same day. Thus, the false defence of alibi does not destroy the prosecution case, which is supported by direct and unshaken evidence of three witnesses.
20. Further, it was claimed by the respondent that the crime might have been committed by the husband of Sharifa, whose relations with Sharifa and others were strained. However, no evidence worth the name could be adduced by the respondent on record even to remotely suggest that murder of Rahima was committed by the husband of Sharifa and that her mother Halimaben had permitted him to go scot free without any reason. Thus, instead of explaining incriminating circumstances appearing against him in the evidence of prosecution witnesses, the respondent had taken up false defence. Though the evidence of P.W.12- Sakambardatt, who is officer of Food Corporation of India at Kandla, shows that the respondent had remained unauthorisedly absent from duty since October 1, 1983, that fact by itself would not establish that the respondent was present at the place of incident, but the fact that the respondent was present in village Navlakhi and had committed crime stands established beyond pale of doubt by cogent and trustworthy evidence of three witnesses.
21. A fair reading of the judgment delivered by the learned trial Judge makes it clear that according to him the respondent might have or might not have committed offence because there was possibility of crime being committed by the husband of witness Sharifa. As observed earlier, relations of witness Sharifa were strained with her husband. Her evidence would indicate that her husband had assaulted her mother with a stick. If crime in question had been committed by her husband, she would have been the last person to spare him. The evidence of witness Sharifa and that of other witnesses further establishes that relations with the respondent were most cordial and that the respondent had helped Sharifa in instituting maintenance case against her husband. In such circumstances, it is highly improbable that witness Sharifa and others, who were under obligation of the respondent, would falsely implicate him in such a serious case. Therefore, far-fetched doubt raised by the learned Judge is not justifeid at all. At this stage, it would be advantageous to refer to the pertinent observations from the decision in State of Punjab v. Karnail Singh, AIR 2003 SC 3609. In para-12 of the reported decision, the Supreme Court has made following observations : “Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and others, (AIR 1990 SC 209)]. Prosecution is not required to meet any and every hypothesis put forward by the accused.[See: State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial, if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See: Inder Singh and another v. State Delhi Admn. (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.” [Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315)] quoted in State of U.P. v. Anil Singh. (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. [See: Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1974(1) SCR 489)], State of U.P. v. Krishna Gopal and another, (AIR 1988 SC 2154) and Gangadhar Behera and others v. State of Orissa. (2002(7) Supreme 276).”
22. On reappreciation of evidence, which is on the record of the case, this Court finds that there is no manner of doubt that the learned Judge manifestly erred in appreciating the evidence. The learned Judge should have appreciated the evidence as a whole. The doubt which is entertained is not founded on any of the facts established by the prosecution or probablised by the defence. In view of tenor of cross-examination of witnesses, the learned Judge should have held that evidence of Sumar Sidi, Sharifa Sidi and Halimaben inspired confidence as it was trustworthy. The testimonies of three natural eye witnesses had remained unshaken. No major and/or material discrepancies could be pointed out from their evidence. Merely because three natural eye witnesses are relatives of the deceased cannot be a ground for rejecting their evidence which is otherwise found to be cogent, consistent and trustworthy. The findings recorded by the learned Judge are contrary to weight of evidence on record and no benefit of doubt, which does not grow out of the evidence could have been given to the respondent. To use the language of the Supreme Court, the trial Court has nurtured fanciful doubt and lingering suspicion without any concrete basis. The benefit of doubt spelt out by the learned Judge in the judgment is imaginary, trivial and merely a possible doubt, but does not grow out of the evidence in the case. After analysing, sifting and assessing the evidence on record, with reference to its trustworthiness and truthfulness by a process of dispassionate judicial scrutiny, I am of the opinion that the reasonings adopted by the learned Judge of trial Court for giving benefit of doubt to the respondent are far-fetched and based on non-existent grounds. Under the circumstances, there are compelling and substantial reasons for interfering with the judgment of acquittal recorded by the learned Judge.
23. Once it is held that the respondent was the person who had inflicted knife blows on Bai Rahima, it becomes necessary to notice injuries sustained by the deceased. Dr. Laxmanbhai Patel, PW.2 Exh.7, who had performed autopsy on the dead body of the deceased, had found following injuries on the deceased :
(i) Incised wound 1.5 cms x 0.5 cm deep into the thoracic cavity on the right side of the second rib.
(ii) Incised wound 5 cms x 0.5 cm x 1/4 cm through the right nostril.
(iii) Lacerated wound 4 cm x 1 cm on the right side of the neck.
(iv) Lacerated wound 1.5 cm x 1/2 cm on the left wrist.
(v) Lacerated wound 2 cm x 1/4 cm on the left wrist. 2.5 cm from injury No.(iv).
The internal injuries noticed by the Doctor were as under:
(i) Stab wound inside second inter costal space.
(ii) Incised wound in the right lung.
(iii) Right side cavity in the chest was filled by 2.5 ltrs. of black blood.
(iv) Right pulmonary vein helium was cut.
The cause of death, according to the Doctor, was profuse bleeding from right lung and right pulmonary vein. According to the doctor, external injury no.1 was corresponding to internal injuries nos.1& 2 and that external injury no.1 was sufficient in the ordinary course of nature to cause death of the deceased. It is well to remember that deceased Rahima was assaulted when she was sleeping on the date of the incident. Having regard to the provisions of Section 300 Clause 3rdly, there is no manner of doubt that the respondent had caused death of deceased Rahima with an intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause her death and, therefore, the respondent would be guilty under Section 302 I.P.C. The injuries sustained by Halimaben and witness Sumar Sidi would establish that the respondent had committed offence punishable under Section 324 I.P.C. Further, the lurking house trespass as defined in Section 443 IPC, which is punishable under Section 457 I.P.C. stands amply proved. Therefore, the respondent is found guilty of the offences punishable under Sections 302, 457, 324 of I.P.C.The prosecution could not produce any notification issued under the provisions of the Bombay Police Act to prove commission of offence by the respondent punishable under Section 135 of the Bombay Police Act. Therefore, acquittal of the respondent of the offence under Section 135 of the Bombay Police Act will have to be upheld. The fact that almost two decades have passed after the respondent was acquitted by the Sessions Court is taken into consideration, but cannot be a ground for recording unwarranted acquittal of the respondent in view of the decision in State of M.P. vs. Ghanshyam Singh, (2003)8 SCC 13.
In view of the above discussion, the appeal is allowed. The judgment and order dated June 2, 1984 rendered by the learned Additional Sessions Judge, Morbi, in Sessions Case No.5 of 1984 acquitting the respondent of all the offences with which he was charged is hereby set aside. The respondent is convicted of the offences punishable under Sections 302, 457 & 324 of the Indian Penal Code. As regards sentence, this Court finds that the minimum sentence which is prescribed under Section 302 I.P.C. is life imprisonment. No case is made out nor it is pleaded that capital sentence should be imposed on the respondent for commission of offence punishable under Section 302 I.P.C. When a Court proposes to impose minimum sentence prescribed under the Statute, it is not necessary for the Court to hear the accused on question of sentence because even after hearing the accused on sentence, a Court cannot impose punishment less than the minimum prescribed. This Court does not propose to pass separate order or sentence regarding offences punishable under Sections 324 & 457 I.P.C. Thus, for commission of offence punishable under Section 302 I.P.C., the respondent is sentenced to suffer R.I. for life. The muddamal to be disposed of in terms of direction given by the learned Judge in the impugned judgment.
At this stage, Mr. J.G. Shah, learned counsel of the respondent, states at the Bar that two decades have passed after the respondent was acquitted by the Sessions Court and having regard to age of the respondent, which would not be less than 70 years and other factors such as probability of the respondent expiring while undergoing imprisonment etc., this Court should make recommendation to His Excellency the President of India or His Excellency the Governor of Gujarat to exercise powers conferred under Articles 72 and 161 of the Constitution of India respectively. It is very difficult to agree with the submission advanced by the learned counsel of the respondent because the recommendations which may be made, would be contrary to the findings recorded by this Court in instant opinion. However, there is no doubt that application, if any made under Article 72 and/or Article 161 of the Constitution is bound to be disposed of in accordance with law. Therefore, the prayer made by the learned counsel of the respondent to make recommendation cannot be accepted and is hereby rejected.
Section 392 of the Code provides that the third Judge before whom the appeal is laid for hearing has to deliver his opinion and the judgment and order shall follow that opinion. The office is, therefore, directed to take appropriate steps in the matter in light of the provisions of Section 392 of the Code.”