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PETITIONER: SHIVAJI SAHEBRAO BOBADE & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT27/08/1973

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. REDDY, P. JAGANMOHAN KHANNA, HANS RAJ

CITATION:  1973 AIR 2622            1974 SCR  (1) 489  1973 SCC  (2) 793  CITATOR INFO :  RF         1973 SC2773  (22,26)  APL        1974 SC 606  (8)  RF         1975 SC 241  (13)  D          1977 SC 472  (27)  RF         1981 SC1917  (16)  F          1983 SC 867  (28)  R          1984 SC1622  (152)  R          1988 SC2154  (9)  RF         1991 SC1842  (6)

ACT: Code  of  Criminal Procedure (Act 5  of  1898)-Section  417- Appeal   against  acquittal-Power  of  the  High  Court   to interfere-Norms for the exercise of the power.

HEADNOTE: The  dangers of exaggerated devotion to the rule of  benefit of  doubt  at  the  expense of social  defence  and  to  the soothing  sentiment  that  all acquittals  are  always  good regardless  of  justice  to the victim  and  the  community, demand  special  emphasis  in the  contemporary  context  of escalating crime and escape.  The judicial instrument has  a public  accountability.  The cherished principles or  golden thread  of proof beyond reasonable doubt which runs  through the  web  of  our law should not be  stretched  morbidly  to embrace  every  hunch, hesitancy and degree of  doubt.   The excessive  solicitude  reflected  in  the  attitude  that  a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma.  Only reasonable doubts belong to the accused.  Otherwise any practical system of justice will breakdown  and  lose  credibility  with  the  community.  if unmerited acquittals become general, they tend to lead to  a cynical  disregard of the law, and this in turn leads  to  a public   demand  for  harsher  legal  presumptions   against indicated ’persons’ and more severe punishment of those  who are  found guilty.  Jurisprudential enthusiasm for  presumed innocence  must be moderated by the pragmatic need  to  make criminal justice potent and realistic.  A balance has to  be struck  between chasing chance possibilities as good  enough to  set the delinquent free and chopping the logic  of  pre- ponderant probability to punish marginal innocents.

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Certainly,  in  the last analysis,  reasonable  doubts  must operate to the advantage of the appellant.  In India the law has been laid on these lines long ago. The  appellants were charged under s. 302 read with  section 34  of the Indian Penal Code.  The Sessions Court  gave  the accused the benefit of doubt and acquitted them.  On  appeal the High Court after elaborate consideration of the evidence and  the grounds relied upon by the trial judge  to  discard the  prosecution case, reversed the findings  and  convicted both  the accused to imprisonment for life.  Confirming  the conviction and sentence and dismissing the appeal, HELD  : This Court had ever since its  inception  considered the,  correct  principle to be applied by the  court  in  an appeal against an order of acquittal and held that the  High Court  has full power to review at large the  evidence  upon which  the order of acquittal was founded and to  reach  the conclusion  that upon that evidence the order  of  acquittal should  be  reversed.  In law there are no  fetters  on  the plenary  power of the_ appellate court to review  the  whole evidence  on  which the order of acquittal is  founded  and, indeed, it has a duty’ to scrutinise the probative  material de  novo informed, however, by the weighty thought that  the rebuttable  innocence attributed to the accused having  been converted  into  an acquittal the homage  our  jurisprudence owes  to individual liberty constrains the higher court  not to  upset  the holding without very convincing  reasons  and comprehensive  consideration.   The  High  Court’s  judgment survives this exacting standard. [493F] Sheo Swarup v. King-Emperor, [1934] L.R. 61 I.A. 398, Sanwat Singh  v. State of Rajasthan. [1961] 3 S.C.R. 120  and  Hai- bans  Singh v. State of Punjab, [1962] Supp. 1  S.C.R.  104, referred to. [equere  : Whether the punitive strategy of the  Penal  Code sufficiently  reflects  the  modern-trends  in  correctional treatment and personalised sentencing.] 490

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 26 of 1970. Appeal  by special leave from the judgment and  order  dated February 4, 15 February, 1969 of the High Court of Bombay in Criminal Appeal No. 800 of 1967. V.   C. Parashar, for the appellants. S.   B. Wad and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. The murder of an old man in broad day light occurred  on  26th  September, 1966, on a  country  road  in Satara District and about seven years later the  fluctuating fortunes of the two young persons charged with the crime are being  finally set at rest.  One of the misfortunes  of  our criminal  process,  which stultifies penal justice,  is  the counter-productive  course of trial and appeal  and  appeal, "at each remove a lengthening chain".  The facts of the case have been set out fairly fully in the judgments of the  High Court  and  the  Trial Court and for the  purposes  of  this appeal  it is sufficient to set out the story in  its  broad essentials. The venue of the offence lies on a cart track connecting the villages of Bibi and Ghadgewadi.  The dramatis personae  are P.W,  8. Sita Ram, a somewhat consequential man  of  village Kadamwadi,  his  quondum servant, the deceased  Hariba,  the alleged assailants (accused) Shivaji and Lalasaheb, the eye-

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witness Vilas (P.  W. 5) who is the Assistant Gram Sewak  of the area, and others cast in lesser roles.  There were  some disputes between the 2nd accused and P.W. 8. Kadamwadi,  the place of residence of these two persons, is a little to  the north  of  Ghadgewadi.   About  a  mile  to  the  south   of Ghadgewadi  is  Bibi which is 4 furlongs  further  south  of Kadamwadi.   This topography is not very relevant except  to follow  the  arguments  accepted by the  trial  judge.   The quarrel  between  P.W.  8 and the second  accused  had  been fostering since 1959 leading to reports to the police  about threatened  violence and a criminal case which ended in  the acquittal of latter.  There was no love lost between P.W.  8 and the first accused either.  For P. W. 1 0 (Bhagwan),  one of  the sons of the former, and his father-in-law who  is  a close  relation of the first accused, were not on terms  for reasons  divergently  given  by the  accused  and  Sita  Ram blaming  each other.  Thus it is more or less  the  admitted case,  and both the courts have found it  established,  that the  accused and P.W. 8 were mutually at loggerheads  during the relevant time.  The deceased was in the service of P. W. 8 for a long while and although about 10 or 12 years ago  he had  left the service, his loyalty lasted all the time  with the  result  that  whenever Sita Ram  requisitioned  him  he readily responded.  In a sense it is common case thai Hariba was a satellite of P. W. 8 and was, at about the time of the occurrence, an inmate of the house: P. W. 5 too was  staving in  P.W.8’s  house  and must have been close to  him  as  is evident from the residential nexus.  On the ill-starred day, Hariba  and Vilas set out to go to the weekly bazar at  Bibi after taking their food at about 10 or 10-30 a.m. They  went to P.W. 5’s office at Ghadgewadi and proceeded to Bibi where Hariba  did some shopping visiting P. W. 6 a shopkeeper  and Shiva Ram, a carpenter.  Later both of them started 491 on their way back finishing their chores.  The way lay along a  cart  track from Bibi to Ghadgewadi.  One Dada  also  had accompanied  them.   of  course, it was a day  of  fair  and people  from the neighbouring villages going to and fro  was not  unnatural.  While the three men were trekking back  and were at some distance from Ghadgewadi the two accused turned up  from behind and called out to Dada to stop.   He  obeyed and  the  other two went along.  Thereupon the  accused  are alleged to have run and overtaken the deceased and P.W. 5 at the place known as Zamanacha Mala, Survey No. 8, Hariba, who was  asked  to  stop, Was set upon by  the  two  assailants. Accused No. 8 drew his knife and silenced P. W. 5 by  threat of stabbing if he broke into raising alarm.  Soon after, the second accused dealt knife blows on the deceased on the head and  eye-brow  and accused No. 1 gave heavy strokes  with  a wire rope to which was attached a leaden ball described as a hunter by the witnesses.  Hariba fell on the ground and  the second accused kicked him as he lay.  Dada was warned not to divulge  and P.W. 5, similarly cautioned, was  conducted  by the assailants up to a distance.  It is significant that  at the  time  of  the  attack the  accused  angrily  asked  the deceased  whether  he would still remain in  the  vasti  (at Kadamwadi  with  Sita Ram).  According to  the  prosecution, P.W.  7  Zumber  was  going by  the  same  cart  track  from Ghadgewadi  to his field for sowing and when he reached  the spot  was told by the accused to divert the cart and not  to speak out. Dada   left  the  place  on  being  threatened   and   Vilas accompanied  the  accused, having been  intimidated  against going  to Kadamwadi.  A little later, one Balakrishna  (P.W. 2) accompanied by Ramu Sakharam (P.W. 9) and others while on

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his  way from Ghadgewadi side to Bibi stumbled on the  scene where Hariba was sinking.  One Anna, father of Zumber  (P.W. 7)  was,  at  about the same time, coming  from  Bibi  side. ’Ibis  person asked helpless Hariba what befell him and  was told  by the latter that Lala and Shivaya (the names are  of the accused) had beaten him.  Shortly after, he breathed his last.  P.Ws. 2 and 9 were present then.  P.W. 2 proceeded to Bibi  and reported the death of Hariba to P.W. 15,  Narayan, the  police patil at Bibi, Ext. 8. The report  was  recorded and  was  transmitted to the police, the  First  Information Report being Ext. 36. Several  witnesses were examined and documents exhibited  at the end of which the Sessions Court concluded : "In any case a  reasonable doubt is cast to the case of  the  prosecution and  the benefit thereof must be given to the accused.   I,, therefore,  hold  that  it is not proved  that  the  accused committed the offence".  In his judgment, which adverts with apparent care to all the relevant circumstances but  suffers from a few fatal flaws which we will refer to in due course, the  trial judge negatived the veracity of  the  prosecution version, but on appeal by the State a Division Bench of  the Bombay  High  Court, after elaborate  consideration  of  the evidence  and the grounds relied upon by the trial judge  to discard the prosecution’s case, reversed the findings.   The conviction  that  followed was visited with  a  sentence  of imprisonment for life.  The court wound up thus :               "Having  thus given our anxious  consideration               to  the  entire  material on  record  and  the               evidence of the eye-witnesses,               492               Vilas  and Zumber, we are satisfied  that  the               learned  Judge was not right in rejecting  the               prosecution   evidence  and   acquitting   the               accused.   We,  therefore, hold  that  on  the               evidence of the two eyewitnesses coupled  with               the  several circumstances pointed  out  above               the prosecution has brought home the guilt  to               the  two accused beyond all reasonable  doubt,               and the only finding in this case can be  that               the  prosecution  has  proved  that  the   two               accused   had  assaulted  and   attacked   the               deceased  with knife and the hunter  with  the               lead-ball  and  caused injuries to  him  which               resulted in his death.  Both the accused must,               therefore, be held guilty of the offence under               section 302 read with section 34 of the Indian               Penal Code." The  two  prisoners have challenged the  reversal  of  their acquittal in this Court. Before  dealing with the merits of the contentions,  we  may perhaps  make  a  few preliminary remarks  provoked  by  the situation presented by this case.  An appellant aggrieved by the overturning of his acquittal deserves the final  court’s deeper   concern  on  fundamental  principles  of   criminal justice.   The  present accused, who have  suffered  such  a fate,  have hopefully appealed to us for a  loaded  approach against  guilt  in  consonance with  the  initial  innocence presumed  in  their favour fortified by the  acquittal  that followed.   We  are  clearly in agreement  with  this  noble proposition,  stated in American Jurisprudence at, one  time (not  now,  though) as implied in the  rule  against  double jeopardy,  in the British system as a branch of the  benefit of  reasonable  doubt doctrine and in our own  on  the  more logical,  socially  relevant  and  modern  basis,  that   an acquitted  accused should not be put in peril of  conviction

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on  appeal  save where substantial  and  compelling  grounds exist   for   such  a  course.   In  India  it  is   not   a jurisdictional  limitation  on  the appellate  court  but  a judge-made  guideline of circumspection.  But we  hasten  to add even here that, although the learned judges of the  High Court have not expressly stated so, they have been at  pains to dwell at length on all the pointed relied on by the trial court  as  favourable to the prisoners for the  good  reason that they wanted to be satisfied in their conscience whether there   was  credible  testimony  warranting,  on   a   fair consideration, a reversal of the acquittal registered by the court  below.   In law there are no fetters on  the  plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it  has a  duty  to scrutinise the probative material de  novo,  in- formed, however, by the weighty thought that the  rebuttable innocence,  attributed to the accused having been  converted into  an  acquittal  the homage our  jurisprudence  owes  to individual liberty constrains the higher court not to  upset the  holding  without  very  convincing  reasons  and   com- prehensive  consideration,  In  our view  the  High  Court’s judgment survives this exacting standard. Even  at this stage we may remind ourselves of  a  necessary social  perspective  in criminal cases  which  suffers  from insufficient   forensic   appreciation.   The   dangers   of exaggerated devotion to the rule of benefit of doubt at  the expense of social defence and to the soothing sentiment that all acquittals are. always good regardless of justice to the 493 victim and .,the community,’ demand especial emphasis in the contemporary  context of escalating crime and  escape.   The judicial  instrument  has  a  public  accountability.    The cherished  principles  or  golden  thread  of  proof  beyond reasonable doubt which runs thro’ the web of our law  should not be stretched morbidly to embrace every hunch,  hesitancy and degree of doubt.  The excessive solicitude reflected  in the  attitude  that  a thousand guilty men may  go  but  one innocent  martyr shall not suffer is a false dilemma.   Only reasonable  doubts  belong to the  accused.   Otherwise  any practical  system of justice will then break down  and  lose credibility  with the community.  The evil of  acquitting  a guilty  person  lightheartedly as a  learned  author(1)  has sapiently  observed, goes much beyond the simple  fact  that just  one guilty person has gone unpunished.   If  unmerited acquittals  become general, they tend to lead to  a  cynical disregard  of  the law, and this in turn leads to  a  public demand  for  harsher legal  presumptions  against  indicated ’persons’ and more severe punishment of those who are  found guilty.  Thus too frequent acquittals of the guilty may lead to  a ferocious penal law, eventually eroding  the  judicial protection  of the guiltless.  For all these reasons  it  is true  to say’, with Viscount Simon, that "a  miscarriage  of justice may arise from the acquittal of the ,guilty no  less than from the conviction of the innocent. .."-In short,  our jurisprudential  enthusiasm for presumed innocence  must  be moderated  by  the pragmatic need to make  criminal  justice potent  and realistic.  A balance has to be  struck  between chasing  enhance  possibilities as good enough  to  set  the delinquent  free  arid chopping the  logic  of  preponderant probability to, punish marginal innocents.  We have  adopted these cautious in analysing the evidence and appraising  the soundness of the contrary conclusions reached by the  courts below.   Certainly, in the last analysis  reasonable  doubts must  operate to the advantage of the appellant.   In  India the law has been laid down on these lines long ago.

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This  Court  had  ever since its  inception  considered  the correct  principle to be applied by the Court in  an  appeal against  an order of acquittal and held that the High  Court has full power to review at large I the evidence upon  which the  order  of  acquittal  was  founded  and  to  reach  the conclusion  that upon that evidence the order  of  acquittal should  be reversed.  The, Privy, Council in Sheo Swarup  v. King Emperor(2) negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the  right of the State to appeal under s. 417 of the  Code. Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any  limitation or  restriction  on the High Court in the  exercise  of  its powers  as an appellate tribunal", that no  distinction  was drawn  "between an appeal from an order of acquittal and  an appeal from a conviction", and that "no limitation should be placed  upon that power unless it be found expressly  stated in  the Code".  He further pointed out at p. 404 that,  "the High  Court  should and will always give proper  weight  and 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 (1)  Clanville Williams in ’Proof of Guilt’.  (2) [1934]  L. R. 61 I. A. 398. 494 been,  acquitted at his trial, (3) the right of the  accused lo  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". In Sanwat Singh & Others v. State of Rajasthan. (1) after an exhaustive  review of cases decided by the Privy Council  as well as by this Court, this Court considered the  principles laid  down  in  Sheo Swarup’s case(2)  and  held  that  they afforded a correct guide for the appellate court’s  approach to  a  case  against an order of acquittal.   It  was  again pointed out by Das Gupta, J. delivering the judgment of five Judges in Harbans Singh and Another v. State of Pubjab(3)               "In  many cases, especially the  earlier  ones               the  Court has in laying down such  principles               emphasised the necessity of interference  with               an  order of acquittal being based only  on  "               compelling  and substantial reasons’  and  has               expressed  the view that unless  such  reasons               are   present  an  Appeal  Court  should   not               interfere  with  an order of  acquittal  (vide               Suraj  Pal  Singh v. The  State-(1952)  S.C.R.               194;  Ajmer  Singh v. State of  Punjab  (1953)               S.C.R.418;  Puran  v. State of  Punjab  A.I.R.               1953  S.C.  458).   The  use  of  the,   words               ’compelling  reasons’ embarrassed some of  the               High  Courts in exercising their  jurisdiction               in appeals against acquittals and difficulties               occasionally  arose as to what this Court  had               meant  by the words ’compelling reasons’.   In               later  years  the  Court  has  often   avoided               emphasis    on   ’compelling   reasons’    but                             nonetheless  adhered  to  the’  view expressed               earlier that before interfering in appeal with               an   order   of   acquittal   a   Court   must               examine .not only questions of law and fact in               all  their aspects but must also  closely  and               carefully  examine the reasons which  impelled               the  lower courts to acquit the  accused  "and

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             should interfere only if satisfied after  such               examination that the conclusion reached by the               lower  court that the guilt of the person  has               not been proved is unreasonable. (Vide  Chinta               v. The State of Madhya Pradesh-Criminal Appeal               No.   178  of  1959  decided  on   18-11-1960;               Asharakha  Haibatkha  Pathan v. The  State  of               Bombay-Criminal Appeal No. 38 of 1960  decided               on 14-12-1960).               "......  On close analysis, it is  clear  that               the principles laid down by the Court in  this               matter  have remained the same.  What  may  be               called  the golden thread running through  all               these  decisions is the rule that in  deciding               appeals against acquittal the Court of  Appeal               must  examine  the  evidence  with  particular               care,  must examine also the reason  on  which               the  order of acquittal was based  and  should               interfere with, the order only when  satisfied               that the view taken by the acquitting Judge is               clearly  unreasonable.   Once  the   appellate               court  comes to the conclusion that  the  view               taken  by  the  lower  court  is  clearly   an               unreasonable one that itself is a "compelling               (1)  [1961] 3 S.C. R. 120.                 (2)               [1934] L. R. 61 1. A. 398..               (3)[1962] Suppl. (1) S. C. R. 104 at p. 109.               495               reason"  for  interference.   For,  it  is   a               court’s  duty to convict a guilty person  when               the  guilt  is established  beyond  reasonable               doubt,  no less than it is its duty to  acquit               the   accused  when  such  guilt  is  not   so               established." Now  to  the  facts.   The scene of  murder  is  rural,  the witnesses  to the case are rustics and so their  behavioural pattern  and  perceptive habits have to be judged  as  such. The too sophisticated approaches familiar in courts based on unreal  assumptions about human conduct cannot obviously  be applied  to  those  given  to  the  lethargic  ways  of  our villages.   When  scanning  the  evidence  of  the   various witnesses we have to inform ourselves that variances on  the fringes,   discrepancies  in  details,   contradictions   in narrations  and embellishments in inessential  parts  cannot militate  against the veracity of the core of the  testimony provided  there  is the impress of truth and  conformity  to probability   in   the  substantial  fabric   of   testimony delivered.   The learned Sessions Judge as at  some  length. dissected   the  evidence,  spun  out   contradictions   and unnatural  conduct, and tested with precision the  time  and sequence of the events connected with the crime, all on  the touchstone  of  the  medical  evidence  and  the  postmortem certificate.   Certainly,  the  court  which  has  seen  the witnesses  depose, has a great advantage over the  appellate judge  who  reads the recorded evidence in cold  print,  and regard  must be had to this advantage enjoyed by  the  trial judge  of observing the demeanour and delivery,  of  reading the straightforwardness and doubtful candour, rustic naivete and   clever   equivocation,  manipulated   conformity   and ingenious  unveracity,  of persons who swear  to  the  facts before   him.   Nevertheless,  where  a  judge   draws   his conclusions not so much on the directness or dubiety of  the witness while on oath but upon general probabilities and  on expert  evidence,  the  court  of appeal is  in  as  good  a position  to assess or arrive at legitimate  conclusions  as

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the  court of first instance.  Nor can we make a  fetish  of the trial judge’s psychic insight. Let  us  now sift the evidence from the  proper  perspective outlined  above  avoiding  both the  exploitation  of  every plausible  suspicion as militating against the certitude  of guilt and the unjust loading of the dice against the accused merely because of a conviction rendered by the High Court. The   probative  items  placed  before  the  court  by   the prosecution there is no defence evidence adduced-falls  into three  groups.  Firstly, we have the eye-witness account  of the mortal attack as given by P. Ws. 5 and 7. Secondly,  the dying declaration stated to have been made by the deceased a little  before  he expired and  witnesses,  Balakrishna  and Ramu,  P.Ws.  2 and 9, have been cited in  support  thereof. The  last  set  of  incriminating  facts  consists  in   the discovery,  under  section 27 of Evidence  Act,  of  certain material  objects  pursuant to the statements  made  by  the accused  supported  by the evidence of few persons  and  the chemical analyst’s report.  The Sessions Judge has  rejected all  the,  three categories taking up  an  extreme  position grounded on the medical evidence and supposed human  conduct while  the  appellate  judges have  swung  to  the  opposite standpoint  and accepted substantially all  the  prosecution evidence.   With  vigilant  skepticism,  let  us  scan   the important  evidence  without  going over  the  whole  ground again. 496 That  Liariba died of violence on 26th September,  1966,  is indubitable, but who did him to death is a moot point.   The lethal attack is alleged to have been made on a  cart-.track lying  between the two villages, Bibi and Ghadgewali in  the afternoon on a bazaar day in the former village when  people must evidently have been moving about.  The macabre story of an old man, Hariba, being killed on a road near village Bibi around 5-30 p.m. by two known persons, Shivaji and Lalasaheb was recounted by one Balakrishna (P.W. 2) before the  Police Patial (P. W. 15) in less than an hour of the incident (vide Ex.  8  and Ex. 36).  Thus, the first information  has  been laid  promptly, if we assume the hour of death to have  been correctly  stated  there.  Ext. 8 does mention  briefly  the material  facts  and the crucial witnesses in  what  may  be treated  as  a hurriedly drawn up embryonic  document.   The contention  of counsel for the respondents before us,  which has  received  judicial reinforcement by acceptance  by  the Sessions Judge, is that this first information is an  ersatz product  of  many  minds manupulating to make  it,  and  the apparently short, honest interval between the occurrence and the report, to the Patil is a make-believe, the death having occurred  beyond  doubt at about 2-00 p.m. and not  at  5-30 p.m.  as the prosecution disingenously pleads.  Reliance  is primarily placed for this pre-clocking of the occurrence  on the  postmortem  certificate,  doctor’s  evidence  and   the medical expertise contained in Modi’s Medical Jurisprudence. Admittedly,   ’semi-digested  solid  food  particles’   were observed  in  the deceased’s stomach by P.W. 4  the  medical officer,  and  the inference sought to be too  neatly  drawn therefrom  is  that the man must have come by his  end  (and that  the  digestive process must also have come to  a  halt with it) 2 to 3 hours after his last lunch, which, according to P.W. 2, was at 10.00 a.m. If he did die before 2.00 p.m., everything else in the prosecution evidence became  suspect, argued the court.  The assurance of this assertion, however, turns on the exact accuracy, in terms of the I.S.T., of  the testimony of P.W. 5 who swore that himself and the  deceased had  taken food on the fateful day at about 10.00  or  10.30

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a.m. before setting out for Bibi.  The sluggish chronometric sense  of the country-side community in India  is  notorious since time is hardly of the essence of their slow life;  and even urban folk make mistakes about ’time when no particular reason to observe and remember the hour of minor event  like taking  a morning meal existed. 10.30 a.m. could  well  have been an hour or more one way or the other and too much  play on such slippery facts goes against realism so essential  in a  testimonial appraisal.  More importantly, the court  must not abandon a scientific attitude  to medical science if  it is not to be guilty or judicial superstition To quote Modi’s Medical Jurisprudence that food would be completely digested in  four to five hours or to swear by the doctor  to  deduce that  death must have occurred within 3 hours of the  eating and,  therefrom,  to argue that the presence  of  undigested food  in the dead body spells the sure inference that  death must  have  occurred  before 2.00 p.m. is  to  mis-read  the science  on  the  subject of  digestive  processes.   Modi’s Medical  Jurisprudence, extracts from which have been  given by  both the courts, makes out that a mixed diet  of  animal and vegetable foods. normally taken by Europeans, takes 4 to 5  hours  for  complete digestion while  a  vegetable  diet, containing  mostly  farinaceous  food  usually  consumed  by Indians, does not leave the stomach completely within 6 to 7 hours  after  its  ingestion.  Indeed,  the  learned  author cautiously adds 497 that the stomachic contents cannot determine with  precision the  time of death "inasmuch as the power  of  digestibility may remain in abeyance for a long time in states of profound shock and coma".  He also states "it must also be remembered that the process of digestion in normal healthy persons  may continue  for  a  time after  death".   The  learned  judges reminded themselves of the imponderables pointed out by Modi which  makes  the ’digestive’  testimony  inconclusive  and, therefore, insufficient to contradict positive evidence,  if any,  about  the  time of death To impute  exactitude  to  a medical  statement  oblivious to the  variables  noticed  by experts and changes in dietary habits is to be unfair to the science.   We are not prepared to run the judicial  risk  of staking the whole verdict on nebulous medical  observations. Given  so  according to P.W. 5 deceased took tea  some  time after  12-30 p.m. when they started for Bibi.  At that  time the  possibility of his having had something to eat  is  not ruled  out.  If so, the medical evidence as to the  time  of death will not be inconsistent with the postmortem findings. Now  let  us get into the core of the  matter  to  ascertain whether  reasonable  doubts about the prosecution  case  are available  on  the  record.  Have  we  credible  eye-witness evidence  ? Have we corroborating circumstances ?  Have  any key  witnesses  been  kept out of  the  Court  without  just explanation  or  rousing  serious  suspicion  ?  Are   there circumstances  militating  against the  reliability  of  the State’s case ?  Have the accused a plausible explanation for incriminating  discoveries ?  As stated earlier,  there  are three   types   of  evidence  adduced  on  behalf   of   the prosecution.   Eye-witnesses  must  naturally  figure   most prominently in a judicial search for truth.  P.W. 5,  Vilas, had  admittedly  some quarrel with the  second  accused  and friendliness with Sita Ram (P. W. 8) who in turn bore bitter hostility  towards both the accused.  In that view,  P.W.  5 may be said to be tainted by bias and interestedness and  so his testimony must be warily evaluated.  However,  witnesses who  are not neutral may well testify to truth and need  not be  condemned out of hand provided in basic  features  their

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deposition  is direct, probable and otherwise  corroborated. Absent such reassuring factors P.W. 5’s evidence may have to be eschewed.  Vilas speaks to his having taken his  forenoon meal  on the 26th September 1966 at Kadam wadi.  He bad  met Hariba,  quite naturally, because both of them were  staying in the house of Sita Ram.  They set out together to Bibi  as each  had some work in that place.  The journey together  is explained in the evidence in a credible manner.  They appear to  have  met  grocer Himmat Gujar (P.W.  6)  and  each  one purchased  some  sundry items from his shop.  This  fact  is corroborated  by P.W. 6. While returning they  stepped  into the house of one Shiva Ram and later proceeded to Kaclamwadi at about 3-45 or 4. p.m. One Dada who was also going in  the same  direction, joined them.  All this is  consistent  with country.  side  leisureliness and gregariousness.   As  they were  walking  along,  the accused called out  to  Dada  who waited in response while the deceased and Vilas went  ahead. Whereupon  the accused spring upon.  Hariba.  At the  behest of  accused No. 1, accused No. 2 drew his knife,  frightened Vilas into silence and gave knife blows on the head and eye- brow  or  Hariba.   The  first  accused  made  his   violent contribution  with  a  ’hunter’ to  which  a  lead-ball  was attached  and  the strikers therewith brought  the  deceased down on the ground.  The second accused kicked the fallen 498 man,  P.W.5,  speaks to these facts as also to  the  accused accosting the deceased whether he would still reside in  the Vasti.  The arrival at about that time of Zumber Mali,  P.W. 7 in a cart, from Ghadgewadi side is also spoken to by  P.W. 5.  He  would  have  us believe that he  was  taken  by  the accused,  threatened to keep what he saw secret  and  warned not  to leave Ghadgewadi for a couple of days.  The  witness later  went to his office at Ghadgewadi and mentioned  about Haris  violent death to school boy Bhanudas (P.W.  17),  the son  of Sita Ram.  Many other inconsequential  details  were also related by the witness but the fact remains that he met Sita-Ram (P.W. 8) only at about 9 p.m. and had not  informed the  authorities before that.  The failure to  disclose  the incident to any one at the village Ghadgewadi, the bias  and interest  Vilas had, the evidence that Hariba had taken  the food  at about 10 or 10-30 a.m. and that later on  they  had not  taken  meals any where-a circumstance  which  militates against  the medical evidence about undigested food  in  the cadavar,  in  a  feeble way  though-the  slight  discrepancy between  Vilas, P.W. 5, and Sita Ram, P.W. 8 about the  time of  the former’s arrival at Kadamwadi and the  unnaturalness of  the twists and turns of the story narrated  by  Mm-these are  made  points  of veliement criticism  by  the  accused. There  is elaborate discussion of his evidence by  both  the courts.  "There is nothing unnatural or improbable", is  the view of the High Court about P.W. 5’s evidence.  Himmat Lal, P.W. 6 substantially corroborates the visit of the  deceased and  P.W.  5  to his shop at Bibi early  in  the  afternoon. Likewise Shiva Ram, P.W. 12 swears to the deceased and  P.W. 5  being  together at Bibi till about 3-30  p.m.  This  also strengthens  the  version  of  Vilas.   The  minor  conflict between  P.W. 8 who says that P.W. 5 came  at  lamp-lighting time  while  P.W. 5 puts it at 9 p.m. is of  little  moment. The  other criticisms also do not add up  to  much-although. certainly this somewhat interested witness must be subjected to  serious corroboration in material particulars before  he can be acted upon. The evidence of Zumber (P.W. 7) is relied upon as that of an eyewitness  because  he swears to having  seen  the  accused kicking  and fisting the deceased.  However,  his  testimony

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looks  tricky  and shaky.  He had stated  in  the  committal court  that he had not seen whether the first accused had  a hunter with him and the second accused a knife in his  hand. It  is  also doubtful that a witness who had  been  declared hostile in the committal court by the prosecution can be  so readily  accepted at his word.  If he had been won  over  by one party at one stage, as the prosecution seems to suggest, it  is difficult to accept his integrity in a grave case  of murder when he deposes as an eye-witness.  What is more  his flagrant  contradiction  on  a  crucial  point  between  the committal court and the Sessions Court weakens his veracity, and  worse is his conduct when he says that he was  able  to see the occurrence from an uneven terrain because he went to sow in the field that afternoon although his uncle had  died that  very day and he had gone for the funeral  The  witness admits that he did not ask the accused why they were kicking the man nor did he stop the sowing in the field at least  to see  what had happened to the victim.  Even on his way  back when he saw people collected near the dead body, he did  not bother   to  enquire  what  had  happened.   To  taint   his truthfulness he admits that there was a quarrel between  the accused’s  uncle on the one hand and himself and his  father on  the other.  A careful reading of the evidence  given  by this 499 the  place at all that afternoon.  We are not able to  agree with  the  easy credence lent by the learned Judges  of  the High  Court  to this testimony.  In short, there is  only  a single eye-witness to the occurrence, P.W. 5. A legitimate criticism is made as to why Dada has been with- drawn.   It is not as if every witness who has something  to do  with  some  part of the prosecution  story  should  pass through  the  witness  box.  There is a  discretion  in  the Public  Prosecutor to pick and choose but to be fair to  the Court  and to truth.  If Dada were essential to  untold  the prosecution story and had been suspiciously suppressed  from the  Court, we would and should have drawn an adverse  infe- rence  but in the circumstances set out earlier,  Dada  does not  seem to be an eye-witness to the actual attack and  his absence from the witnessbox is not, therefore, fatal to  the prosecution.   No sinister motive can be imputed to his  not being  examined.  Prudence would have suggested a  different course. Had  the whole case rested on the sole testimony of  P.W.  5 our  minds would have wavered.  The prosecution  places,  by way  of  corroboration,  the dying  declaration  of  Hariba. Balakrishna,  P.W.  2. a resident of Bibi who is  the  first informant  in  the case, states that he had  proceeded  from Bibi  to  Ghadgewadi for purchasin’g’  his  rations,  having received  wages  in the morning.  Ramu (P.W. 9)  and  a  few others  were  also  with  him.   On  their  way  back   from Ghadgewadi to Bibi after buying rations, they came by  three persons  identified as accused No. 1 and accused No.  2  and the  Secretary  (presumably P.W. 5).  Balakrishna  (P.W.  2) testifies  to having seen the deceased lying on the road  at Jamana field.  One Anna Mali and a "malaria doctor" had come from  the basti side at the spot at about that time.  A  man lying  on  the road was bleeding and Anna asked him  why  he came by the wounds whereupon Hariba spoke in a groaning tone to  the  he  of P.W. 2 and others that Lala  and  Shiva  had beaten him.  This =Is says that the malaria doctor had  left without stopping there-not that unnatural in our country  to see  people  disappear when anything  savouring  of  violent crime  takes place fearing that their remaining there  might involve  them  as witness or otherwise later on.   Any  way,

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P.W. 2 proceeded to Bibi, reported to the Police Patil, P.W. 15  and  signed the statement recorded from.  him,  Ext.  8. Little injury has been inflicted on his testimony in  cross- examination and no serious reason has been made out in  this Court why the High Court’s acceptance of his word should  be rejected.   Indeed,  apart from describing the  evidence  as unnatural  and as not in consonance with Zumber’s  presence, precious  little  has  been adduced by the  trial  court  to discredit  his evidence.  But the criticism about  the  non- examination of Anna who drew the dying declaration from  the mouth  of  the  deceased  and of  the  malaria  doctor,  who Drobably is a respectable man by rural standards, cannot  be lightly  brushed aside.  The non-examination of  the  latter need  not  detain us because smelling trouble  he  had  made himself scarce without even stopping there.  The failure  to put 500 Anna  in the witness box after having cited him disturb  our minds  a little more but he is the father of Zumber and  may at  the most repeat what P.W. 2 has sworn.   The  prosecutor giving  him  up under these circumstances,  may  perhaps  be taking  chances with the court but we are not  persuaded  of any  unfairness in the special circumstances of  this  case. It  is  noteworthy  that P. W. 2 had  purchased  rations  as deposed to by P.W. 14, their ration shopkeeper.  P.W. 9 Ramu who had accompanied P.W. 2 also corroborates him Ext. 8, the first information statement, makes specific reference to the dying declaration made to Anna.  We are satisfied that  P.W. 2  and  P.W.  9  are credible  enough  to  prove  the  dying declaration since P.W. 9 also has not suffered any  material dent  in his evidence as a result of cross-examination.   We are conscious that undocumented dying declarations’ are easy to  get  up and being based on the fading  recollection  and unsure  probity of ordinary persons with  human  frailities, cannot be safely trusted save when the general features  and other  dependable materials justify reliance.  Even  so  the natural statement of Hariba about the cause of his death  to the  passersby  proved  by  P.Ws.  2  and  9,  read  in  the background of other circumstances of the case, overcomes the rule of prudent reluctance judicially adopted in  evaluating oral dying declarations. The   discovery  of  incriminating  materials  pursuant   to confessions  made  by  the  accused  constitutes  the  third category  of,  evidence.   Obviously,  the  confessions  are inadmissible  but-  the discoveries are, provided  they  are pertinent  to the guilt of the accused., So far  as  accused No. 2 is concerned, his statement resulted in the  discovery of  a  knife (vide Panchnama, Ext. 13).  of  course,  knives were  discovered  long ago and not now but  this  knife  lay buried  and was recovered by the .accused from a pit in  the corner  of a wall of his house.  There was .human  blood  on the blade of the knife, M.O. 5/11 according to the  chemical analyst’s  report.  The second accused’s clothes  also  were picked  up by him pursuant to his statement.  He had worn  a shirt  and  pants on the day of occurrence and  P.W.  13,  a neighbour  deposes that ,the second accused had come to  him at  about  6  p.m.  on the Monday when  Hari  died  and  had mentioned  to  him that since his own house  was  locked  he might  be  permitted to keep his clothes  in  the  witness’s house.  Thereafter he left his clothes under am empty Khokha from  where he himself took them out-when he later came  in. the company of .the police.  There are blood ’Stains on  the clothes  and it is found by, the chemical examiner that  the blood  on the pants are of the same blood group as  that  of the deceased.  When the second accused was asked under  sec.

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342,  Cr.   P.C. about the export of the  chemical  examiner noticing  blood stains on the shirt, M.O. 5/2 and  of  human blood  on  the  blade  of the knife,  M.O.  511,  he  merely answered,  "I do not know".  He also described as false  the fact  of  his recovering the clothes and  the  knife.   Bald denial notwithstanding, we are inclined to believe, with the learned  Judges  of the High Court. that the knife  and  the shirt have been identified as his and since he gad recovered them,  thereby making the police discover, the  fact,  there was  incriminating  inference  available  against  the  said accused.  We may notice here a serious omission committed by the trial Judge and not noticed by either 501 court.   The pants allegedly worn at the time of the  attack by the second accused has stains of blood relatable to  the. group of the deceased.  This circumstance binds him to,  the crime a little closer but it is unfortunate that no specific question about this circumstance has been put to him by  the court.   It is trite law, nevertheless fundamental that  the prisoner’s  attention should be drawn to  every  inculpatory material    so as to enable him to explain it.  This is  the basic fairness of a criminal trial and failures in this area many  gravely’ imperil the validity of the trial itself,  if consequential  miscarriage of justice has flowed.   However, where  such an omission has occurred it does not ipso  facto vitiate  the proceedings and- prejudice occasioned  by  such defect must be established by the accused.  In the event  of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration.  it is  also open to the appellate court to call has as  regards the circumstances established against him but not put to him and  if the accused is unable to offer the  appellate  court any  plausible    or   reasonable   explanation   of    Such circumstances, the court may   assume  that  no   acceptable answer  exists  and  that  even  if  the  accused  had  been questioned at the proper time in the trial court he    would not have been able to furnish any good ground to get out  of the  circumstances on which the trial court had  relied  for its  conviction. In such a case, the court proceeds  on  the footing that though a grave   irregularity  has occurred  as regards compliance with section 342, Cr.     P.C.,       the omission has not been shown to hive caused prejudice to the accused.  In,  the present case, however,  the  High  Court, though not the trial court has relied upon the presence  (if blood on the, pants of the    blood  group of the  deceased. We  have not been shown what explanation the  accused  could have  offered to this chemical finding particularly when  we remember that his answer to the question regarding the human blood  on,  the  blade of the knife was  ’I  do  not  know’. Counsel   for  the  appellants  could  not  make   out   any intelligent explanation and the ’blood’ testimony takes  the crime closer to the accused. However,   we are not  inclined to rely over much on this evidentiary-circumstance. although we should emphasise how this inadvertence of the trial court had  led to a relevant fact being argued as  unavailable  to the  the  prosecution. Great-care is  expected  of  Sessions Judges.who  try grave cases to collect  every  incriminating circumstance and put it to the accused  even  though at  the end of a long trial the Judge may be a little fagged out. The  first accused also had made a statement leading to  the discovery  of  a hunter with a lead-ball from a pit  in  the field of his uncle Bobade (vide Panchnama Ext. 14).  P.W. 3, the Panch witness speaks to this effect.  The High Court has relied  on  this evidence with which we agree  After  all  a hunter with a lead-ball is not something ordinarily found in

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fields  or wells or in houses.  The conclusion that  emerges from  these discoveries is that the apparel, of  the  second accused  and  the  weapons recovered  establish  some  nexus between the crime and the appellants.  We are aware that  by themselves  they  are inconclusive but in  conjunction  with other facts they may have efficacy. 502 Some  attempt was made to show that the many injuries  found on  the  person  of the deceased and  the  manner  of  their infliction as deposed to by the eye-witnesses do not  tally. There  is  no doubt that substantially the  wounds  and  the weapons   and  the  manner  of  causation   run   congruous. Photographic  picturisation of blows and Kicks and hits  and strikes  in an attack cannot be expected from witnesses  who are   not  fabricated  and  little  turns   on   indifferent incompatibilities.   Efforts  to harmonise  humdrum  details betray police tutoring, not rugged truth-, fulness. Now  let  us  sum  up the whole case in  the  light  of  the evidence we have found to be of worth.  We must observe that even if a witness is not reliable, he need not be false  and even if the Police have trumped up one witness or two or has embroidered the story to give a credible look to their  case that  cannot  defeat  justice  if there  is  clear  and  un- impeachable  evidence making out-the guilt of  the  accused. Certainly,  it is a primary principle that the accused  must be  and not merely may be guilty before a court can  convict and  the mental distance between ,may be’ and ’must  be’  is long  and divides vague conjectures from  sure  conclusions. Informing ourselves of these important principles we analyse the  evidence found good by us.  In our view there  is  only one  eye-witness, P.W. 5, Vilas.  Even if the  case  against the  accused hangs on the evidence of a single  eye-,witness it  may be enough to sustain the, conviction given  sterling testimony of a competent, honest man, although as a rule  of prudence  courts call for corroboration.  It is a  platitude to  say  that witnesses have to be weighed and  not  counted since  quality matters more than quantity in human  affairs. We are persuaded that the PW 5 is a witness for truth but in view  of the circumstances that he is interested,  we  would still want corroboration in this case to reassure ourselves. And that we have in this case. The   earlier   discussion  leaves   unscathed   the   dying declaration  and  incriminating  discoveries  and  the  only question  is  whether they are sufficient to  reinforce  the essential   facts   bearing  on   the   appellants’   direct involvement  in the crime.  The accused, we feel  convinced, are reasonably proved to have murdered Heriba.  But  counsel argues  that no animus against the victim has been made  out and  motiveless  malignity militates against  natural  human condut.   Proof of motive satisfies the judicial mind  about the  likelihood  of  the authorship  but  its  absence  only demands deeper forensic search and cannot undo the effect of evidence  otherwise  sufficient.  Motives of men  are  often subjective,  submerged  and unamenable to  easy  proof  that courts  have to go without clear evidence thereon  if  other clinching  evidence exists.  In the case on hand the  enmity with Sita Ram being active and admitted,, 503 the   pique   against  Hariba,  his  loyal   dependent,   is understandable.  While striking the deceased he was asked in a  tell-tale  manner, whether he would still stay  at  Vasti (Kadamwadi,  with Sita Ram).  That betrays the  motive.   We affirm the finding of the High Court. Two men in their twenties thus stand convicted of murder and have  to suffer imprisonment for life because  the  punitive

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strategy of our Penal Code does not sufficiently reflect the modern  trends  in correctional treatment  and  personalised sentencing.   We  do riot wish to consider these  facets  as they fall outside our scope here. We  confirm  the  conviction and sentence  and  dismiss  the appeal. K. B. N.                                              Appeal dismissed. 504