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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

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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

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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

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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

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(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

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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

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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

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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,

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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

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H.S.K.                                       Appeal allowed. 280