PETITIONER:
RAMJI SURJYA & ANOTHER
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT13/05/1983
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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 an 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
JUDGMENT:
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 out post ‘khabar’ (Exh. 36) in the
prescribed form and sent P.W. 1 Ratan Singh alongwith the
out post 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 an 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 no 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 illwill is
suggested. Now in the instant case a careful analysis of the
evidence relating to the
277
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 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
278
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.
280