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PETITIONER: GANESH BHAVAN PATEL & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT18/10/1978

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. ((CJ) REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR  135            1979 SCR  (2)  94  1978 SCC  (4) 371  CITATOR INFO :  R          1981 SC 733  (9)  R          1988 SC1158  (3)  R          1989 SC2004  (30)  RF         1992 SC 891  (24)

ACT:      Indian Penal  Code-s.  302-Trial  court  acquitted  the accused but  the High  Court convicted  them-Powers of  High Court to  re-assess evidence  in an  appeal from an order of acquittal-If  main   grounds  for   acquitting  accused  are reasonable and  plausible High  Court should not disturb the acquittal.

HEADNOTE:      The two  appellants were  charged with  the offence  of committing the  murder  of  the  deceased.  The  prosecution relied mainly  upon the evidence of three witnesses, P.W. 2, P.W. 3  and P.W.  5 who  claimed to  be eyewitnesses  of the occurrence      The  trial   court  disbelieved   those  witnesses  and acquitted both  the appellants.  On appeal  the  High  Court reexamined  the  evidence  and  held  that  the  infirmities noticed by  the trial court in the evidence of witnesses did not constitute  good grounds  for rejecting  their evidence, and reversing  the order  of acquittal,  convicted both  the accused under s. 302 read with s. 34 I.P.C.      Allowing the appeal, ^      HELD: 1.  The overall view of the evidence taken by the trial court  was reasonable,  and the High Court was not, in view of  the settled principles on the subject, justified in reversing the same.      2. A  long line of decisions, starting from Sheo Swarup v. Kirug  Emperor (61 I.A. 398) have firmly established that although in  an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusion, 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) the views of the trial judge as to the credibility of the witnesses;  (ii) the  presumption of innocence in favour

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of the  accused, a presumption certainly not weakened by the fact that  he has  been acquitted  at the  trial; (iii)  the right of  the accused  to the benefit of any doubt, and (iv) the slowness  of an  appellate court in disturbing a finding of fact  arrived at  by a  judge who  had the  advantage  of seeing the  witnesses. Where  two reasonable conclusions can be drawn  on the  evidence on record, the High Court should, as a  matter of  judicial caution,  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. [98 F-H]      In the  instant case, some of the main reasons given by the trial  court could  not be  effectively  and  rationally dispelled. One  of such  reasons, which  cast a cloud on the credibility of  the prosecution evidence, was that there was inordi 95 nate delay  of several  hours on  the part  of the police in recording the  statement   which was  treated as  F.I.R. and further undue  delay in  recording  the  statements  of  the alleged eye-witnesses  by the  investigating officer, and no credible  explanation   of  these  delays  was  forthcoming. Although these  witnesses were  or could  be  available  for examination when the investigating officer visited the scene of occurrence  or soon  thereafter,  their  statements  were recorded on the following day.      Such delay  may not, by themselves, amount to a serious infirmity in  the prosecution case. But they may assume such a character  if there  are circumstances to suggest that the investigator was  deliberately marking  time with  a view to decide about  the shape to be given to the case and the eye- witnesses to  be introduced. A catena of circumstances which lend such  sinister significance  to these delays, exists in the instant  case, which  inevitably lead  to the conclusion that the  prosecution story  was conceived  and  constructed after a good deal of deliberation, in a shady setting highly redolent of doubt and suspicion.

JUDGMENT:      CRlMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 64 of 1974.      From the Judgment and order dated 2nd/4th December 1972 of the Bombay High Court in Criminal Appeal No. 1492/70.      S. S. Javali, Amicus Curiae for Appellant No. 1.      N. H. Hingorani and Mrs. K. Hingorani for Appellant No. 2.      H. R. Khanna and M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      SARKAR1A,  J.   This  appeal   is  directed  against  a judgment, dated  December 2/4,  1972, of  the High  Court of Bombay, whereby it converted the acquittal of the appellants herein, into  a conviction  under Section  302 read with 34, Indian Penal Code.      According  to   the  prosecution,   Damji  had  illicit relations with  Smt. Bachibai,  wife of  Dana  Ravji  Patel, appellant, who was original accused No. 1 at the trial. Dana was aware  of these  relations, and about two to four months before  the  occurrence,  he  had  threatened  to  kill  the deceased. Damji  deceased, along with his wife and daughter, was living  in a  room in  Building No. 3, Bhaveshwar Nagar,

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Ghatkopar, Bombay.      On November 29, 1969, at about 7 p.m., the deceased was returning home  on his  bicycle. When  he entered  the  lane adjacent to  the said  Building No.  3, both  the appellants assaulted him  with knives.  Pramila (P.W.2),  and about  13 years, the daughter of the deceased was Sitting on a charpoy in the compound of Building No. 3. This compound is enclosed by a wall and is close to the lane. Another girl, 96 named Kuvarbai  (P.W. 5), also aged 13 years, was sitting on the Otla  nearby. On  being attacked, the deceased cried out Bachao Bachao’.  On hearing  this, Pramila got up and ran to the place of occurrence. On coming out of the compound gate, she saw  both the appellants causing injuries with knives to the deceased who was then lying on the ground. His legs were in the  gutter and the rest of the body on the road. Pramila asked the  assailants as  to why  they were  assaulting  her father. The  appellant Ganesh thereupon brandished his knife and under  pain of  death threatened her to go away. Pramila then raised  a hue  and cry,  on hearing which, Welji Harkha (P.W. 3),  a Contractor,  who was  going in  his car  to his office in  a nearby  building, was  attracted to  the  spot. Welji stopped  his car and immediately proceeded towards the scene of  occurrence. On  his approach,  Dana, appellant ran away carrying  the knife  with him, but Ganesh appellant was still there dealing blows to the deceased. Welji caught hold of Ganesh ‘by his shirt, slapped and upbraided him as to why he was  assaulting the deceased. Ganesh got himself released from Welji’s  grip and  ran away  in the  Same direction  in which his  companion had gone. Welji then went to his office in the hind street. His son, Mohan was there. A large number of other  persons were also there. He did not whisper even a word about  the occurrence  to any  of them, not even to his son, Mohan. At his request, his son, Mohan, drove him in the car to his residence.      At the spot, Kuvarbai (P.W. 5), on seeing the appellant assaulting the  deceased, ran to the residential room of the deceased  and   informed  his   wife,  Santukbai  (P.W.  6). Thereupon, Santukbai  rushed to  the place of occurrence and found her  husband lying  in a pool of blood. She, also, saw her  daughter,   Pramila,  standing   there.   Pramila   and Santukbai, both  pulled out  the deceased from the gutter to the road. Pramila then ran to her uncle, Kanjibhai (P.W. 7), who was residing in the vicinity, and informed him about the incident. Pramila returned to the spot along with Kanjibhai. By that  time, one Ravji (P.W. 1), who had been betrothed to Pramila, had  come to the spot. He learnt from Santukbai and Pramila all  about  the  occurrence.  At  about  7.30  p.m., Constable Shinde  (P.W. 20), along with a Head Constable and another Constable,  who were  on patrol  duty, came  to  the scene. Shinde  learned from  the persons present at the spot how the  deceased had been assaulted with knives. Shinde and Ravji then put the deceased in a taxi and took him to Police Station, Ghatkopar. Shinde informed the Police Sub-Inspector Patil (P.W. 21), who was incharge of the I Police Station at that time.  The deceased was then taken to the Sion Hospital by another  Police Constable.  Shinde and  Ravji accompanied the deceased.  On reaching the Hospital, the doctor declared the de 97 ceased dead.  At about  8.30 p.m., Ravji and Shinde returned to the  Police  Station.  The  Sub-Inspector  then  recorded Ravji’s statement  and registered  a case  under Section 302 read with 34, Indian Penal Code.      The investigation was started by Inspector Tipnis (P.W.

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24) .  Accompanied by  Sub-Inspector Pathak (P.W. 22) and S. I. Patil, the Inspector went to the Hospital. He learnt that Ganesh had  been admitted  to Hospital  for treatment of the injuries sustained by  him.   There,  the   investigator  arrested  Ganesh  and interrogated him. He also seized a blood-stained Chaddi (Ex. 52) from  the person  of Ganesh  and prepared a Panchnama in this connection.  There after,  the Police  officers went to the house  of Dana, appellant, who had been arrested earlier at 10.45  p.m.  by  Constable  Shinde  (P.W.  20).  Under  a Panchnama (Ex.  44), the Police seized blood-stained clothes of Dana. They were produced by his wife, Bachibai (P.W. 12).      The prosecution  case further  is that  Dana  appellant produced two  knives (Ex.  17 and  Ex. 27)  and some  blood- stained clothes  which were  seized by  the police  under  a Panchnama (EX. 44).      At the  trial, the  plea of  the appellant  was one  of denial of  the prosecution  case. Dana  appellant,  however, admitted that there were improper relations between his wife and the  deceased. His  story was  that on  the date  of the incident at  about 7  p.m., when he was proceeding along the road in  front of  Building No.  3, the  deceased came  from behind on  a bicycle  and  slapped  him  on  the  neck.  The deceased then left his bicycle near the gate of the compound of Building  No. 3,  took a  knife and  got hold  of Dana to strike him.  When Dana  was struggling  to get  out  of  the clutches of  the deceased,  the latter attempted to stab the former. But  the blow  attempted by the deceased, missed its aim and  grazed past the appellant’s right arm, causing only a scratch. The deceased then attempted another knife blow on the chest  of Dana,  but Ganesh  intervened and  came to the rescue of  Dana. In the meanwhile, the second blow attempted by the  deceased landed on the left shoulder of Dana causing an injury.  Dana then got free and ran away in the direction of Kailash Nagar.      Ganesh told,  more or less, the same story. His version was that  he had  seen the deceased coming and giving a slap from behind  on the neck of Dana. On seeing this, he went to the rescue  of Dana.  By that time, the deceased had already caused a  stab wound  on the  left shoulder  of Dana.  While grappling with  the deceased, he (Ganesh) also received cuts on his  fingers from  the knife held by the deceased. Ganesh further goes on to say that after Dana had run away, four or five persons came there and one of them assaulted 98 the deceased  with a  knife on  the chest. When this scuffle between the deceased and the stranger assailant started, the appellant ran  away to  the house  of Dana  and advised  his father to arrange for medical aid to Dana.      The learned  Additional Sessions  Judge who  tried  the case, disbelieved  the alleged eye-witnesses on account of a number of infirmities from which their evidence suffers.      On appeal,  the High Court re-examined the evidence and came to  the conclusion  that the infirmities noticed by the Trial Court  did not  constitute good  grounds for rejecting the evidence  of the  eyewitnesses. In  the result, the High Court reversed  the acquittal and convicted both the accused under Section  302 read  with 34,  Penal Code, and sentenced each of them to undergo imprisonment for life.      Hence this appeal.      The  mainstay  of  the  prosecution  consisted  of  the testimony of  Pramila (P.W.  2), Welji  Harkha (P.W.  3) and Kuvarbai (P.W.  S) who  claimed to  be eyewitnesses  of  the occurrence. Then,  there was  another set  of witnesses  who claimed to  have reached  the scene  of crime soon after its

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commission when  the deceased was still lying injured at the spot. These  are Santukbai  (P.W. 6),  Kamjibhai  (P.W.  7), Ravji (P.W. 1) and constable Shinde (P.W. 20).      The dictum  of the Privy Council in Sheo Swarup v. King Emperor (’), and a bead-roll of decisions of this Court have firmly established  the position  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-to use the words of Lord Russel  of  Killowen-’always  give  proper  weight  and consideration to  such matters as (1) the views of the Trial Judge as  to  the  credibility  of  the  witnesses  (2)  the presumption  of  innocence  in  favour  of  the  accused,  a presumption certainly  not weakened  by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit  of any  doubt;  and  (4)  the  slowness  of  an appellate Court  in disturbing  a finding of fact arrived at by a  Judge who  had the  advantage of seeing the witnesses. Where  two  reasonable  conclusions  can  be  drawn  on  the evidence on  record, the  High Court  should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded  by the  Court below.  In other words, in the main  grounds on  which the  Court below  has based  its order acquitting the accused, are reasonable 99 and  plausible,  and  cannot  be  entirely  and  effectively dislodged or  demolished, the  High Court should not disturb the acquittal.      Keeping in  mind these principles, with the aid of Shri Javali, amicus curiae for appellant No. 2, we have carefully examined the evidence of all the material witnesses and also the judgments of the Courts below.      As noted  by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws., Welji, Pramila and Kuvarbai  and casts  a serious  doubt about  their being eyewitnesses of  the occurrence,  is the  undue delay on the part  of   the  investigating  officer  in  recording  their statements.  Although  these  witnesses  were  or  could  be available for  examination when  the  investigating  officer visited the  scene of  occurrence or  soon thereafter, their statements under  Section 161  Cr. P.C. were recorded on the following day.  Welji (P.W.  3)  was  examined  at  8  a.m., Pramila at  9.15 or  9.30 a.m., and Kuvarbai at 1 p.m. delay of a  few hours, simpliciler, in recording the statements of eyewitnesses  may  not,  by  itself,  amount  to  a  serious infirmity in  the prosecution case. But it may assume such a character if  there are concomitant circumstances to suggest that the  investigator was  deliberately marking time with a view to  decide about  the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend  such significance  to this  delay, exists in the instant case. The first  of these  circumstances is that no F.I.R. appears to have  been recorded  in this  case before  3 A.M.  Of the morning of  the 30th  November. The prosecution have treated the  statement   of  Ravji,   recorded  in   the  course  of investigation, as  the F.I.R. Police Sub-Inspector Patil who was in  charge of  the Police  Station at the relevant time, wanted to  have  it  believed  that  he  had  recorded  this statement of  Ravji at 8.30 P.M. On the 29th November But no less a  witness than  Ravji, himself,  gave a  direct lie to Patil on  this point.  Ravji testified in unmistakable terms that his  statement was recorded in the Police Station at 12 midnight or  1 a.m. after the completion of the Panchnama of

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the scene  of offence.  This  Panchnama,  according  to  the prosecution, was  completed by  the investigators  at  12.15 a.m., and immediately thereafter, the Panchnama in regard to the production  of the  blood- stained  clothes of accused 1 was prepared and completed at about 12.45 a.m. Ravji further stated that  he might  have signed his statement recorded by the Police, at 3 a.m.      The Trial  Court accepted  the evidence  of Ravji in as much as  he stated  that his  statement-which was treated as F.I.R.-was recorded  by the police between 12 midnight and 1 a.m. and was completed when he signed it at about 3 a.m. The Learned Judges of the High 100 Court have  disbelieved Ravji  on this point, for the reason that he  is a  "labour boy"  about 18  years old, having "no sense of  time", and have preferred to accept the ipse dixit of S.I.  Patil that  Ravji’s statement  was recorded at 8.30 P.M. With  respect, the  reasons given by the High Court for brushing aside  the testimony of Ravji on this point, appear to us,  manifestly unsustainable.  The very  fact that Ravji was a  "labour boy",  aged about 18, far from being a reason for doubting  his veracity on this point, was a guarantee of the truth  of his version. He was an unsophisticated witness who was  not fully  aware or  bosted about  the  twists  and distortions introduced  by  the  investigating  officer.  He therefore, unwittingly  blurted out the truth on this point. As against  him, S.I. Patil, besides being highly interested in the prosecution, was supposed to be aware that in order a statement should  be treated  as F.I.R., it must be recorded first  in   point  of   time  before   the  commencement  of investigation.      In this  connection,  the  second  circumstance,  which enhances  the   potentiality  of  this  delay  as  a  factor undermining the  prosecution case,  is the order of priority or sequence  in which the investigating officer recorded the statements of  witnesses. Normally,  in  a  case  where  the commission of  the crime  is alleged  to have  been seen  by witnesses who  are easily  available, a prudent investigator would give  to the examination of such witnesses precedence, over the evidence of other witnesses Here, the natural order of priorities seems to have been reversed. The investigating officer first  recorded  the  statement  of  Ravji,  in  all probability, between  12.45 and  3  a.m.  On  the  30th,  of Constable Shinde,  at  4  a.m.,  and  thereafter  of  Walji, Kanjibhai  (P.W.   7),  Santukbai  (P.W.  6),  Pramila,  and Kuvarbai, between 8 a.m. and 1 p.m.      The investigating  officers made  a futile  attempt  to explain away  their conduct  in not  promptly recording  the statements of the alleged eyewitnesses. Inspector Tipnis and Sub-Inspector Pathak stated that after the completion of the panchnamas at  the spot,  they made  efforts to  contact the material  witnesses,   including  Pramila,   Santukbai   and Kuvarbai.  Santukbai   was  actually   questioned   by   the investigating officers,  but they  did not  then record  her statement, because she was in an anguished state of mind and was wailing.      With regard  to Pramila and Kuvarbai, the investigators said that  these girls were then asleep, and therefore, they did not  think it  proper to  disturb them. Inspector Tipnis tried  to   give  an  additional  reason  for  delaying  the examination of  these witnesses  till the  following day. He stated that  he did not want the girls and the women-folk to be present  in the Police Station at that hour of the night. The Trial 101

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Judge rejected  this  explanation,  and  we  think  rightly. Santukbai herself   had  knocked the  bottom  out  of  these ’explanations’. She  stated that  she was  questioned by the investigating officers during the night and she had answered all their  questions. Even  if she  was then  in a  state of anguish, it  is not  understandable why the answers given by her to  the questions of the investigating officer, were not recorded. If  she  answered  those  questions,  which,  even according to S.I. Pathak, she did, it could not be said that she was not in a position to make a statement.      Ravji  (P.W.1)  further  falsified  the  ’explanations’ given by the investigating officers. He stated that Pramila, Kuvarbai and  Santukbai, all the three, were actually called out and  questioned during  the night,  by the investigating officers.      If the  untruth of  any aspect  of these ’explanations’ remained  in   the  penumbral  zone,  hidden  from  judicial scrutiny, the  same was  fully exposed  by  Constable  Kakde (P.W. 18) of this very Police Station.      In cross-examination,  Kakde let the cat out of the bag in as  much as  he stated  that about  2.30 a.m. he had seen P.Ws. Pramila,  Kuvarbai, Santukbai,  Kanjibai and  Ravji in the Police Station.      A third  circumstance to be noted in the context, which enhances the  suspicion about  Welji, Pramila  and  Kuvarbai having been introduced as ’eye-witnesses’ at a late stage of the case,  is, that  their names  as such witnesses were not mentioned anywhere  in the  investigation record  before the morning of  the 30th November. In this connection, it may be mentioned that  Ravji and  Shinde reached the scene of crime soon after  its commission. Ravji came a few moments earlier than Constable  Shinde. Damji was then alive and lay injured at the  spot. It  was Constable  Shinde who,  accompanied by Ravji, removed  the injured  in a  taxi, first to the Police Station and from there to the Sion Hospital.      At the trial. Shinde stated that on reaching the Police Station, he had reported "the matter" to S.I. Patil, who was incharge of  the Police  Station. Shinde did not say that he had mentioned  the names  of the  assailants of Damji or the witnesses to  the Sub-Inspector  on this  occasion. Further, Shinde did  not vouch  that Ravji  had made any report about the incident to S.I. Patil.      S.I. Patil (P.W. 21), also, did not say that Shinde had told him  that Damji had been, according to his information, assaulted by the accused, Ganesh and Dana. Nor did Patil say that Shinde  had mentioned the names of the witnesses of the occurrence. All  that Patil stated on this point was that at about 7.30 a.m., Constable Shinde 102 came to the Police Station and informed the witness that one person who  had been assauled by two others with knives, was lying injured in a Taxi outside, and that he was accompanied by Ravji.  In variance  with Shinde’s version, however, S.I. Patil stated  that he  had questioned Ravji on this occasion and the  latter told  him that Damji had been assaulted with knives  by   Ganesh  and   Dana  accused.   Ravji   directly contradicted S.I.  Patil on  this point,  and stated that on this occasion  he was  not at  all questioned by S.I. Patil; nor did  the witness  himself give any information about the incident to the Sub-Inspector. Ravji had no motive to tell a lie on  this point.  He was  a "would-be"  son-in-law of the deceased. He  was in  no way  hostile to the prosecution. on the  contrary,   he  was   playing  the  active  role  of  a "complainant" in  this case.  The  Trial  Court  was,  fully justified in  accepting his  testimony  on  this  point,  in

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preference  to   the  bare   oral  word   of   S.I.   Patil, particularly, when Ravji’s version was, and Patil’s was not, consistent   with    the   surrounding   circumstances   and probabilities of the case.      The  most  important  of  these  circumstances  is  the conduct  of   S.I.  Patil   in  not  recording  that  "first information" allegedly  given by  Shinde and  Ravji on  that occasion. S.  I. Patil  admitted that  he did not record the information given  to him  by Shinde  and  Ravji  about  the occurrence on  that occasion. The information, which he then received, was  about the commission of a cognizable offence. It was,  therefore, the duty of S.I. Patil (who was incharge of the  Police Station)  to record it in accordance with the provisions of  Section 154  Cr. P.C.,  but he did not do so. The explanation given by him was that it was the practice of his Police  Station not  to record  such information until a message was  received from  the Hospital  with regard to the condition of the injured person. This explanation of Patil’s failure  to  do  what  was  his  statutory  duty.  was  mere moonshine and  was rightly  repelled by  the  learned  trial Judge.      It will  bear repetition that the learned Judges of the High Court  have disbelieved Ravji and accepted S.I. Patil’s bare word  of  mouth,  both  with  regard  to  the  time  of recording Ravji’s  statement  and  Ravji’s  having  informed Patil in  the Police  Station at 7.30 p.m. about the accused being the  assailants of the deceased, when Ravji and Shinde took the injured there in a taxi. As noticed already, one of the reasons  given by  the High  Court for rejecting Ravji’s testimony on  this point,  is that  he was a mere labour boy having no  sense of  time. With respect, this reason appears to us  manifestly, unsound.  Labourers, masons  and artisans who work on daily wages for fixed hours, have an acute sense of time.  There was  nothing indefinite  or unbelievable  in Ravji’s  version  to  the  effect  that  his  statement  was recorded by the Police 103 Sub-Inspector between  12 midnight  and 1  a.m.,  while  his signature was  obtained on that statement probably at 3 a.m. No question  was put to him to test his ’sense of time’. Nor was  any   attempt  made   in  re-examination  to  elicit  a clarification, if  one was  needed, with a view to reconcile this version  of the  witness with  that of  the prosecution case, as  laid by  S.I. Patil,  about the  time of recording Ravji’s statement, treated as the F.I.R.      Thus  considered   in  the  light  of  the  surrounding circumstances, this  inordinate delay in registration of the ’F.I.R.’ and  further delay  in recording  the statements of the material  witnesses, casts  a cloud  of suspicion on the credibility of  the entire  warp and woof of the prosecution story.      Keeping in  mind this  all-clouding infirmity the trial Judge scrutinised the evidence of the witnesses.      The first  infirmity noted by the Trial Judge in regard to Pramila’s  evidence was  that her name or her presence at the scene  of offence was not mentioned in the record of the investigation till  9.15 or  9.30 a.m. of the 30th November. Even Welji  in his police statement recorded at about 8 a.m. On the  30th November, did not mention Pramila’s name or her presence at  the scene  of offence.  Constable Shinde, while reporting to  S.I. Patil at the Police Station at about 7.30 p.m., did  not mention either the name of the accused or the eye-witnesses. Even  in  his  statement  before  the  police alleged to  have been  recorded at  about 4 p.m., Shinde did not mention  that he had got the information from Pramila or

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that Pramila  wars present  on the  spot,  when  he  reached there.      Apart from the vitiating circumstance that Pramila, the 13 year  old daughter of the deceased, was introduced by the Investigator as  a witness  as late  as  9.15  A.M.  On  the following day,  the Trial  Judge noted  that her conduct was unnatural and  inconsistent with  her being  an  eyewitness. Pramila  admitted  in  unmistakable  terms  that  on  seeing accused 2  assaulting her  father, she  did not  immediately raise an  alarm; she simply stated that on reaching the spot she asked  the accused why he was assaulting her father. The accused then  pointed his knife towards her and asked her to go away otherwise she would be killed. It was at this stage, that she  raised the  outcry: "Bachao  Bachao",  on  hearing which, Welji  Harka came  to the  spot. The l rial Judge who had the  occasion to  observe,- the  demeanour of Pramila in the witnessbox,  thought this  conduct on  her part was very unnatural because  the normal instinctive reaction of such a child on  seeing her parent being attacked, should have been to raise an instant alarm to attract the 104 inhabitants of  the locality  for  help;  and  her  shouting ’Bachao Bachao’  as she  alleges-at a stage when the assault on her  father was  over, was "very artificial" and appeared to have been introduced only for making Welji’s version that he was attracted by such shouts to the spot, plausible.      The third  circumstance which  in the  opinion  of  the Trial Judge,  throws a  cloud on  the veracity  of Pramila’s evidence was this. The occurrence took place at about 7 p.m. which was  not an  unusual hour,  in an  inhabited locality, there  being   several  big  residential  buildings  in  the vicinity, each  having numerous one-room tenements. Building No. 3,  in a  room of  which Pramila lived with her parents, had three  S storeys,  and each  storey had  10 or 12 rooms, each room being in the occupation of a different family. The lane must  have been frequented at that hour by the numerous residents of  the locality  or passers-by  If there  was any out-cry by the victim or alarm by Pramila, a large number of persons  should   have  been   attracted  to  the  scene  of occurrence. But,  according to  Pramila and  Santukbai, even after the  attack was over, only two or three strangers came there, who  helped them in pulling out the deceased from the gutter. According  to Ravji,  the number of the persons, who had collected  there,  was  four  or  five.  None  of  those independent witnesses  whose  attraction  to  the  spot  was probable, or whose collecting on the scene immediately after the  occurrence   was  admitted,   was  examined   by   the, prosecution. Pramila’s  version that  none other came on the scene of  occurrence,  excepting  Welji  and  Kuvarbai,  was improbable.      The fourth  infirmity noted by the Trial Court was that Pramila was  a highly interested witness and the amenability to tutoring  of a  girl of  such tender age, cannot be ruled out.      The   Trial   Judge   further   pointed   out   several contradictions between what she stated at the trial and what she  had  earlier  stated  in  the  Committal  Court.  These contradictions related  to, (a)  whether accused  1 had  run away and  accused 2  alone was  at  the  spot  stabbing  the deceased when  Welji came;  (b) whether Kuvarbai was sitting on that  very cot  on which  Pramila  was  sitting,  or  was sitting at  some distance  on an  Otla when  the  shouts  of ’Bachao Bachao’ were heard from the scene of occurrence; and (c) whether  Santukbai, her mother came to the spot alone or whether she  was then accompanied by Pramila, and whether it

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was after  the arrival of Shantukbai, that Pramila want from the spot to fetch her uncle, Kanjibhai.      As  regards  the  evidence  of  Kuvarbai  (P.W.5),  the learned trial  Judge reasoned  that "if  Pramila’s  presence itself at the scene of crime 105 was doubtful,  there was  hardly anything   that  this  girl (Kuvarbai) would corroborate with regard to what Pramila had said," He  again  stressed  that  Kuvarbai’s  statement  was recorded by  the police  after a  delay of  40 hours  and no satisfactory explanation  of this delay was coming forth. He further noted  that Kuvarbai,  also, a child hardly 13 or 14 year old,  and the  possibility of  her having  been tutored could not  be ruled  out.  He further reasoned that Kuvarbai had, according to her own admission, seen the incident for a brief moment over the compound wall from a distance of about 24 or  25 feet.   It  was 7 p.m. and the month was November. There was  no natural  light at that time.  The street lamp, which was  then on,  was at a distance of about 35 feet from the spot and the lamp-post was, according to the evidence of Ramrao Jadhav (P.W. 4), 25 feet high.  According to Pramila, she caught  only a  momentary glimpse  of the  backs of  the assailants. She  never saw  their  faces.    She  could  not describe the  colour or  the kind  of the  clothes that  the assailants were  wearing, although  she claimed to have seen them assaulting  with knives.   She  could not, however, say whether  the   knives  were   big  or   small.  Taking  into consideration all  these factors,  the learned  trial  Judge concluded- and  in our opinion, rightly- that the chances of her  "identifying  clearly  and  without  mistake,  the  two assailants as  the two  accused before the Court, appears to be rather  meagre."   A further  reason given  by the  trial Judge for  doubting Kuvarbai’s  veracity  was  that  in  her statement before  the police,  she did not mention accused 2 at all.   Being  a  material  omission,  it  amounted  to  a contradiction.      The last  two infirmities  noted by the trial Judge ion Kuvarbai’s evidence  were weighty  and could  not be lightly overlooked.      We now  come to  the evidence of Welji Harkha (P.W. 3). The story told by him at the trial was that he was returning in his  car, driven by himself, from the Municipal Garden on Tilak Road,  where he  had gone, as usual, heart a discourse on the Geeta.  The witness was proceeding towards his office situated in  Bhaveshwar Nagar,  Building No  3 in  the third street, on  Mahatma Gandhi Road.  When he in his car came in front of  the residence of Damji in Building No. 3, he heard Pramila shouting  ’Bachao Bachao’.   The witness stopped. By the time he stopped his car and alighted, accused 1 ran away with a  knife in  hand, while  accused 2  was stabbing Damji with a  knife.  The witness went to accused 2, caught him by his shirt  and slapped  him but  the accused managed to free himself and run away.      As rightly  pointed out  by the  trial Court,  the most glaring infirmity  which vitiates  Welji’s evidence, was his unnatural conduct.  Welji was 8-817 SCI/78 106 the leader  of the  community of  artisan that lived in this locality. Welji  admitted  that  Damji  was  his  child-hood acquaintance. Since  his childhood,  the deceased had worked as an artisan or labourer for the witness in connection with the latter’s  business as a contractor. They knew each other in Pakistan  where they were residing before their migration to India.  But, on  seeing the  brutal assault  on his child

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hood  acquaintance,  or  friend,  Welji  left  him  bleeding profusely in the gutter. He did not even care to see whether Damji was  dead or  alive. He had a car with him. He did not suggest or  offer his  car  for  removal  of  Damji  to  the Hospital, nor  did anything  else to arrange for medical aid to the  injured who  according to  the other  witnesses, was still alive.  After seeing  all this,  he callously and non- challantly drove  away to  his office, without having even a look at the dying man. According to the witness, on reaching his office  he found  there a  number of his workmen and his son, Mohan. He did not inform any of those persons, not even his son, anything about the occurrence, much less did he ask his son or any of those persons present there to inform the- police or  to go  and  arrange  for  medical  aid  or  other assistance to Damji and his relatives. He had a telephone in his office and also at his residence. Yet he did not give or cause to  be given  and information  about the  crime to the police. The  explanation given by Welji for his indifferent, and strange conduct was that he had got frightened and upset and the  persons present  in his  office had already come to know about  the occurrence.  The explanation  was manifestly untenable and  was, in  our opinion, rightly repelled by the trial Court.  After the  assailants had  run away  from  the spot, there remained no cause for Welji to fear them. On the departure of  the assailants, it was expected of him to have at least  a glance  at his  childhood  fellow  to  ascertain whether he  was dead  or alive. According to him, his office was nearby  in the  third street. This means, he reached his office only  seconds after  tine incident.  This  being  the case, the  trial Court  very rightly  remarked that the news about the  assault could  not have travelled faster than his car. Welji  claims to be the leader of the labour community, who were  inhabitants of  that locality. The least which was expected from  such a  labour leader  was,  that  he  should arrange for  the immediate removal of his injured fellow-man to the Hospital.      We have  therefore, no  hesitation in agreeing with the learned trial Judge that this strange conduct of the witness "comes in the way of accepting his story as true".      Apart from  the. fact  that Welji’s conduct was strange and inconsistent  with the normal conduct of an eye-witness, and the  inordinate delay  in recording his statement by the police, his evidence suffers 107 from other material flaws, also. In his statement before the police,  Welji did not specifically name Pramila (P.W. 2) as person by  whose shouts,  he was  attracted to  the scene of occurrence. In  variance with  what he  stated at the trial, his version  before the  police was  that he had heard ’some ladies, (that  means more than one person), shouting ’Bachao Bachao’. Admittedly,  he knew  Pramila’s name  prior to  the occurrence. His  version in  the  witness-box  that  he  was attracted to  the spot on hearing the shouts of Pramila, was therefore, an  improvement deliberately  made to  fit in the prosecution story at the trial.      Again, Welji stated that when he caught hold of accused 2, his  pyjama got  blood-stains upto  a height  of 5  or  6 inches. No  such pyjama  was produced  before the  police or even in  the Trial Court. Questioned why he failed to do so, the witness  stated that  he did  not want  that the accused should be  involved at  his instance as both the accused and the victim  were equal  to  him  like  his  two  eyes.  This explanation  was  obviously  unacceptable,  because  at  the trial, he  did appear  as a  witness for the prosecution and against the other party, that is, the accused.

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    Another  admitted   circumstance  which  blemished  the evidence of  Welji, was  that the father of accused 2 was in the employ  of the witness as a motor-driver for about seven or eight  years. His  services were  dispensed with  by  the witness about 2 months prior to the occurrence on the ground of irregularity  in service.  The case  put to  him  by  the defence was  that the  father of  accused  2  had  raised  a dispute by demanding a higher pay.      Last but  not the  least, Welji was admittedly operated upon for  cataract, only  a  couple  of  months  before  the occurrence. His  eye- sight  was weak. He was old and infirm and a  heart-patient. He was a Contractor and a man of means and had  in his  employment a motor-driver for 7 or 8 years. Moreover, his  adult son  who admittedly  knew  car  driving well, was  available to  drive the  ear for  him.  In  these circumstances, the  trial Court’s observation, to the effect that it was most unlikely that this old man of 69 years with a weak  eye-sight and a weak heart, would be driving his car himself at  7 p.m.  when it  was pretty  dark, without there being any emergency cannot be rejected out of hand.      In sum,  we find that the over-all view of the evidence taken by  the trial  Court was  reasonable. While it is true that some  of the reasons given by the trial Court, if taken individually, do  not appear to be substantial or impeccable but taken in their totality, they cer- 108 tainly render  the  evidence  of  the  material  prosecution witnesses unsafe to be acted upon.      All the  infirmities and flaws pointed out by the trial Court assumed  importance, when  considered in  the light of the all-pervading  circumstance that  there  was  inordinate delay in  recording Ravji’s  statement on the basis of which the "F.I.R."  was registered) and further delay in recording the  statements   of  Welji,   Pramila  and  Kuvarbai.  This circumstance, looming  large in  the background,  inevitably leads to  the conclusion,  that the  prosecution  story  was conceived and  constructed after a good deal of deliberation and delay  in a  shady setting, highly redolent of doubt and suspicion.      This all-vitiating  circumstance, we  say so with great respect,  could  not  be,  and  has  not  been,  effectively dispelled by the High Court, except by a blind acceptance of the ipse  dixit of  Sub-Inspector Patil,  on this  point, in preference to  the testimony  of Ravji  (P.W. 1),  who  was, according to the prosecution, the prime mover of the gear.      For all  the foregoing  reasons, we  allow this appeal, set aside  the conviction  of the appellants and acquit them of the charges levelled against them.      Before we  part with  this judgment,  we will  place on record our  appreciation of the valuable assistance rendered to  us  by  Shri  Javali,  who,  though  amicus  curiae  for appellant  2,  has  fully  argued  the  case  on  behalf  of appellant 1, also. P.B.R.                                       Appeal allowed. 109