N Criminal Appeal No 429 of 1980 From the Judgment and order dated the 21st December 1979 of the High Court of Bombay in Criminal Appeal No 467 of 1975
MN Sharma for the Appellants
Amicus Curiae J section Akartey and MN Shroff for the Respondent
The Judgment of the Court was delivered by VENKATARAMIAH J
This Criminal Appeal under section 2 of the Act No 28 of 1970 is filed by two appellants Ramji Surjya Padvi and Bhikji Surjya Padvi accused Nos 2 and 4 in Sessions Case No 102 of 1974 on the file of the Additional Sessions Judge Dhulia against the judgment of the High Court of Bombay in Criminal Appeal No 467 of 1975 by which it reversed the judgment of acquittal passed by the Sessions Court on a charge under section 30234 of the Indian Penal Code and imposed the sentence of rigorous imprisonment for life on each of them after holding them guilty of the charge under section 30234 of the Indian Penal Code
The facts of the case are these Damji accused No 1 Ramji accused No 2 and Bhikji accused No 4 are the sons of Surjya Tulya Padvi accused No 3
Accused Nos
I to 4 are residents of a village called Veri in taluka Akkalkuwa
The said village was by the side of a river called Mothi Nadi
In the month of March 1974 one Prabhat Singh the deceased a resident of Mojapada which is a hamlet of Bhagdari village within the limits of Dhadgaon police station had grown watermelons on a portion of the bed of the Mothi Nadi river near the village Veri
The distance between the place where watermelons had been grown by the deceased and his village was about two miles
It is the case of the prosecution that during the last week of March 1974 the deceased Prabhat Singh and his wife Surjabhai PW 2 were staying in a hut which they had constructed near the place where they had grown watermelons in order to keep watch over the watermelon crop
They used to cook their food in the hut
On March 26 1974 at about 900 PM when Prabhat Singh was Lying on a cot inside the hut Surjabai was sitting outside near an agiti in which she had kept fire and was warming 271 herself
It is the case of the prosecution that at that time the four accused persons referred to above came there and when they were questioned by Surjabai they told that they had come to smoke tobacco
At that time accused No 2 Ramji was armed with an axe
The accused did not however stay there for the purpose of smoking but suddenly entered the hut where accused Nos 1 3 and 4 Damji Surjya and Bhikji caught hold of Prabhat Singh and Ramji accused No 2 gave a number of blows with an axe on the head face and neck of Prabhat Singh
Thereafter they ran away
Surjabai out of fear went near a big stone in a nearby hillock and concealed herself behind it
She continued it sit there for some time and on returning to the scene of occurrence she found that her husband had died
Thereafter she went to her village in the early hours of March 27 1974 and narrated the incident to her daughter in law Bharatibai PW 3 in the presence of two of her servants Bapu and Arshya who have not been examined in the case
It is stated that she sent another servant of her s Bamanya PW 8 to go to a village called Nala gavi where her son Ratan Singh PW 1 had gone on the previous day to fetch him
She thereafter sent for Gumba PW 5 who was formerly the Police Patil of her village and narrated before him the incident in which her husband had been killed
It is stated that she mentioned the names of the four accused as the assailants to PW 3 Bharatibai as well as to Gumba PW 5
It is further stated that Surjabai Gumba Bharatibai and the two servants Bapu and Arshya and some others went to the place where the dead body of Prabhat Singh was lying
They also sent for Detka PW 9 who was the Police Patil at that time
Ratan Singh according to the prosecution reached the place at about 500 PM On being informed by Bamanya PW 8 about the incident Surjabai narrated the whole story again before Ratan Singh PW 1
Thereafter PW 1 went to the village Molgi where there was a police out post alongwith Detka PW 9 and orally mentioned to the Head Constable by name Keval Bedse PW 13 about the incident
PW 13 prepared the out post khabar  Exh 36 in the prescribed form and sent PW 1 Ratan Singh alongwith the out post khabar to the Police Station at Dhadgaon
PW 13 thereafter left for the scene of occurrence to keep watch over the dead body
Ratan Singh is stated to have hired a jeep and gone to Dhadgaon and reached that place at about 215 AM On March 28 1974
There he met the police Sub Inspector at the Police Station and made a statement Exh 10 before him which was recorded by him In that statement he narrated what he had heard from his mother at about 500 PM on 272 March 27 1974
In that statement the names of the four accused are found as the assailants
Thereafter the police Sub Inspector came to the spot on the morning of March 28 1974 and carried on further investigation
He arrested the accused Nos
I to 3 on the evening of March 28 1974 accused No 4 on the next day and after completing the investigation he filed the charge sheet against them for an offence punishable under section 30234 of the Indian Penal Code
The learned Sessions Judge who tried the case disbelieved the case of the prosecution that Surjabai was an eye witness of the occurrence and acquitted the accused
Against the said judgment of acquittal the State Government preferred an appeal before the High Court
It would appear that during the pendency of the appeal accuced No 1 Damji and accused No 3 Surjya had died
This fact perhaps was not brought to the notice of the High Court
Before the High Court the accused were represented by an amicus curiae
The High Court set aside the judgment of acquittal and convicted all the accused including accused No 1 and accused No 3 who had died earlier under section 30234 of the Indian Penal Code and imposed on each of them the sentence of imprisonment for life
Against the judgment of the High Court accused No 2 and accused No 4 preferred this appeal before this Court
When the appeal came up for admission by an order made by this Court on August 18 1980 the appeal of Bhikji accused No 4 was dismissed
The notice of appeal was issued only in so far as Ramji accused No 2 was concerned
Shri M N Sharma who has appeared in this case as amicus curiae has raised among others
two points before us 1 that the case of the prosecution was a concocted one and 2 that in any event since it was not possible to say that two opinions were not possible about the guilt of the accused it was not open to the High Court to reverse the judgment of acquittal of the Sessions Court
We shall first deal with the manner in which first information was given to the police in this case
It is true that in the statement Exh 10 of Ratan Singh PW 1 which is stated to have been recorded at 215 AM
On March 28 1974 at the Dhadgaon Police Station we find the names of all the four accused and a brief description of the incident which is alleged to have been narrated by Surjabai PW 2 at about 500 PM
On March 27 1974 before Ratan Singh PW 1
What value should be attached to the contents 273 of this document depends on the evidence in the case
According to the prosecution the incident took place at about 9 PM
On March 26 1974
Surjabai PW 2 is stated to be the sole witness of the crime
She is stated to have disclosed all the particulars relating to the incident on the morning of March 27 1974 to Bharatibai PW 3 and some others as stated above
Surjabai has stated in the course of her deposition that she had told the Police Patil that she wanted a complaint to be lodged thereafter the Police Patil wrote something and that writing was taken by Ratan Singh PW 1 to Molgi where the police out post was situated
She has also stated that she had instructed the Police Patil and others that nobody should go to lodge a complaint till the arrival of her son Ratan Singh PW 1
The writing referred to above which according to the events disclosed in the prosecution case is the first document containing the gist of the version of Surjabai regarding the incident
That document is not forthcoming in the case
Bharatibai
PW 3 has a different version to give about the lodging of the complaint
She has stated in her cross examination My mother in law Surjabai had told Gumba Police Patil that he could lodge complaint of murder
This was stated to him at about breakfast time in the morning
Immediately thereafter Police Patil Gumba had gone to lodge a complaint
Van Singh Sarpanch and Tap Singh had gone alongwith Police Patil to lodge complaint
They returned at about 12 Noon after filing complaint at Molgi
This complaint cannot be the same which is referred to earlier because the earlier complaint according to PW 2 Surjabai was the one which was taken by Ratan Singh PW 1 to Molgi
The complaint referred to by PW 3 Bharatibai is a complaint which was prepared at about noon by Police Patil Gumba PW 5 and lodged by him at Molgi at about 1200 noon long before the arrival of Ratan Singh at the scene of occurrence
This complaint is also not forthcoming
Gumba PW 5 who is a former Police Patil denies that Surjabai PW 2 had told him to go and lodge a complaint
He has stated that he had received information about the murder in the morning he did not go to lodge a complaint as Detka PW 9 was the Police Patil and that when Surjabai narrated before Police Patil Detka the particulars of the incident he asked Police Patil Detka P W 9
that he should go to lodge a complaint
This happened according to him at about 2 PM
On March 27 1974
PW 9 Detka says that he went to the place of occurrence at about 130 PM
On March 27 1974 where the dead body was Lying and he stayed there awaiting the arrival of 274 Ratan Singh PW 1 who reached that place by 500 PM and thereafter he and Ratan Singh went to Molgi police out post where the head constable prepared the occurrence report
He says that he reached Molgi at about sun set time but the khabar report
Exh 36 prepared by the head constable at Molgi shows that the khabar  was given to him at 21 hours ie 900 PM
On March 27 1974
Ratan Singh PW 1 who is stated to have given that khabar says that he reached Molgi at about 800 or 830 PM and gave the information contained in the khabar report
The first information stated to have been recorded by the police under section 154 of the Criminal Procedure Code is stated to be the one taken down at the Police Station at Dhadgaon Exh 10 at 215 AM
On March 28 1974
A close examination of the above evidence shows that according to Surjabai PW 2 there was a document prepared by Gumba Pw 5 in the morning of March 27 1974
containing the information given by her which was later on taken by Ratan Singh PW 1
Then according to Bharatibai PW 3 there was a document which was prepared by Gumba at about 1200 Noon which he took to Molgi and lodged it with the Molgi police out post
According to PW 9 Police Patil Detka the information was given at the police out post at about sun set time ie at about 630 PM
The khabar report itself shows that it was received at 900 PM
On March 27 1974 and the first information is stated to have been recorded at 215 AM
On March 28 1974
In this case the prosecution have attempted in the course of the evidence to explain away the delay in giving the information to the police out post which was nearly 24 hours from the time at which the occurrence is stated to have taken place by stating that Surjabai P W 2 did not want such information to be lodged with the police until the arrival of Ratan Singh which according to the prosecution took place at 5 PM
On March 27 1974
The attempt of the prosecution to explain away the delay has failed in the instant case since we have several different versions about the lodging of the information with the police out post and the earlier versions of the crime said to have been given by Surjabai which were in writing appear to have been suppressed in this case
This extraordinary
delay in giving the first information to the police in the present case which has not been properly explained cannot but be viewed with suspician 275 The motive for the crime is stated to be that the plot on which the deceased had grown watermelons was being used by accused No 2 Ramji some years before the incident to grow onions and that there was a quarrel about 8 or 10 days prior to the incident between accused No 2 and Ratan Singh PW 1
The land in question being a part of the river bed did not belong to accused No 2 and he was not cultivating there for about 2 or 3 years before the incident
The land was probably getting submerged during rainy season
Accused No 2 could not therefore be considered as being in possession of that plot when the deceased commenced cultivation
There is also no evidence showing that accused No 2 had raised any objection when watermelon seeds were actually planted
In the circumstances the motive suggested does not appear to be strong enough for the four accused joining together to commit the murder of the deceased
While there could be no doubt about the homicidal character of the death of the deceased the learned Sessions Judge who heard the evidence of Surjabai PW 2 held that the details of the incident given by her were imaginary or improbable and therefore unbelievable
Some of the inherent contradictions in her evidence are these In her evidence she has stated that she was sitting outside the hut near a place where she had kept fire agiti at about 900 PM and she saw from there all that took place inside the hut when her husband was assaulted by the accused
She has even given the role played by each of them
She has stated that while accused Nos 1 3 and 4 held the deceased accused No 2 assaulted him repeatedly with the axe he had brought
The sketch of the scene of occurrence Exh
P 4 shows that the fire place was to the South of the hut but the hut had an opening towards the East only
She could not therefore have seen the actual assualt from the place where she is stated to be sitting
It is also noteworthy that the only source of light at the time of the incident was the fire said to have been ignited by Surjabai PW 2
It is difficult to believe that she could in that light identify the accused the arms they were carrying and the clothes they were wearing about which she has tried to give detailed description in her evidence
Her answer that she had put more fuel in order to have more light so that she could identify the accused properly appears to be bit artificial
She however has admitted that it had become dark even when they were taking food earlier
It is also strange that she did not try to resist the attack on her husband
It is further seen that in Exh 10 the first information 276 it is stated that she had told Ratan Singh PW 1 that at the time of the incident she was chit chatting with her husband but in her deposition she has stated that the deceased had fallen asleep at the time of the incident
The doctor PW 6 has stated that the cause of the death was due to severe bleeding due to the cutting of the Light carotid artery It is also in evidence that the blood of 
the deceased had been splashed all round but it is stated by Surjabai PW 2 that no even a single stain of blood was found on her clothes
Ordinarily on such an occasion a wife whose husband is murdered would come into close contact with the body of her husband and her clothes would become blood stained
In the instant case there was no means of avoiding such stains also as there was darkness all round where the incident is stated to have taken place
The absence of blood stains on the clothes of Surjabai PW 2 suggests that she could not have been present at the scene at the time of occurrence
The statement found in Exh
P 10 and also in her deposition that she was hiding on a hillock during that night out of fear is contradicted by the evidence of Bharatibai PW 3 that Surjabai PW 2 had told her that she was in the hut throughout till she returned home
We may also not here that according to Ratan Singh PW 1 the son of the deceased they had engaged about seven annual  servants to work on their fields and one of them was Bamanya PW 8 who had gone to fetch him from Nalagavi village where he had gone to see his son who was studying in Ashram School
None of the servants had been asked to stay at the hut alongwith the deceased but only Surjabai PW 2 is stated to be present at the scene of occurrence
The distance between the village of Surjabai PW 2 and the scene of occurrence was about 1 12 miles according to the evidence of Ratan Singh PW 1
If that was so it is not known why Surjabai did not run to the village immediately after the incident took place instead of running towards the hillock and returning to the village next morning
There is no doubt that even where there is only a sole eye witness of a crime a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful
But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or illwill is suggested
Now in the instant case a careful analysis of the evidence relating to the 277 inordinate delay involved in the giving of the first information to the police and the other inherent inconsistencies in the evidence of the sole eye witness i e Surjabai P W2 shows that her evidence cannot be considered as sufficient to find the accused guity
The first information Exh P 10 itself appears to be one prepared after some deliberation
The role attributed to Gumba PW5 the former Police Patil in the prosecution evidence compels the Court to look for corroboration from the other prosecution evidence before accepting the evidence of Surjabai PW 2
The accused Nos 1 to 3 were arrested on March 28 1974
The axe and clothes recovered on March 28 1974 itself on the basis of the statement of accused No 2 and of accused No 3 had no blood stains according to the report of the Assisstant Chemical Analyser to Government Exh 39
The house of accused No 1 was not searched on that day even though there was no impediment for doing so
His house was searched on the next day when a dhoti said to contain some blood stain was found with him
The delay in the recovery of this dhoti was considered by the learned Sessions Judge as affecting the evidentiary value of the said recovery
Similarly the blood stains said to be on a banian seized from the person of accused No 4 when he was arrested on March 29 1974 was considered by the Sessions Judge as not possessing any corroborative value again on account of the interval between the time of occurrence and the time of recovery
The learned Sessions Judge felt that the evidence of Surjabai could not be accepted without any further corroboration
The learned Sessions Judge also felt that the evidence of the other prosecution witnesses such as Gumba PW 5 Police Patil Detka PW9 and Ratan Singh PW1 could not be safely relied on as furnishing corroboration to the statement of Surjabai PW2 in view of the several circumstances narrated in his judgment
The evidence of motive also was found to be discrepant by the learned Sessions Judge
According y he acquitted all the accused
The High Court which was hearing an appeal against a judgment of acquittal has not bestowed due care on the principles governing its jurisdiction
While there is no doubt that the jurisdiction of an appellate court is coextensive with that of the trial court in the case of an appeal against a judgment of acquittal it cannot totally brush aside the appreciation of the evidence by the trial court The reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible the appellate court should be 278 slow in interfering with the judgment of the trial court even if it is possible for it to take a different view after a process of laborious reasoning
We do not find a proper discussion in the judgment of the High Court about the various versions in the prosecution evidence about the giving of the first information to the police which we have pointed out above in their true perspective
The High Court has over simplified this issue and has observed In this case bearing in mind the place where the incident occurred we find no unreasonable delay in reporting the incident to the police out post at Molgi and subsequently in giving the complaint at the Dhadgaon Police Station
It may be noted that the distance between Molgi and the village of the deceased was hardly three miles but the khabar  reached the Molgi police out post according to the prosecution nearly 24 hours after the incident
The reason given by the prosecution for this inordinate delay is hardly convincing
This important aspect of the case has been overlooked by the High Court
There is one other circumstance to which reference may be made here
The doctor PW6 who had conducted the post mortem examinaton of the body of the deceased gave evidence stating that the death of the deceased could not have taken place soon after the dinner as he did not find any food particles in the stomach or the small intestines of the deceased
He opined that by the time of the death of the deceased at least four hours must have passed after his taking food
There being nothing highly incongruous about this statement the learned Sessions Judge had observed in his judgment that the evidence of Surjabai PW 2 that she had served food for the deceased at about 830 PM could not be accepted as probable as the fatal assault had taken place at about 900 PM
But the High Court has severely criticised the evidence of this doctor observing that our impression is that he hardiy knows what he is talking about and what is extraordinary is that the less he knows the more assertive he is
No reliance what so ever can be placed on such evidence and no conclusion can be drawn either adverse or in favour of the prosecution from the opinion evidence of such a poorly qualified medical witness
This comment by the High Court on the evidence of the doctor appears to be more severe than what it should have been particularly when his opinion that it was possible that the death in this particular case was instantaneous  is not seriously challenged
In the circumstances of this case the scope for exaggeration on the part of the prosecution witnesses involving innocent persons cannot also be ruled out
As we have pointed out earlier the High Court has missed some 279 important discrepancies in the prosecution case
Bearing in mind the well settled principles governing a case of this nature we feel that it would be unsafe to act upon the evidence of Surjabai PW2 and convict the accused
In the circumstances the High Court was in error in upsetting the verdict of acquittal recorded by the trial court
We therefore hold that the appeal of Ramji Surjya Padvi accused No 2 appellant No 1 should be allowed
Having reached the above conclusion we feel that ends of justice require that we should suo motu recall the order dismissing the appeal of Bhikji Surjya Padvi accused No 4 appellant No 2 in this appeal and acquit him also
We accordingly review the order dated August 18 1980 of this Court dismissing his appeal and restore his appeal to the file
It may be mentioned here that the learned counsel for the State fairly conceded that if the appeal of accused No 2 is to be allowed accused No 4 should also be released
In the result we allow this appeal set aside the conviction of accused Nos 2 and 4 appellants Nos 1 and 2 Ramjl Surijya Padvi and Bhikji Surjya Padvi under section 30234 of the Indian Penal Code and the sentences of imprisonment for life imposed on them by the High Court and restore the judgment of acquittal passed by the trial court
Accused No 2 and accused No 4 the appellants herein shall be released forthwith HSK Appeal allowed


Summary:
The appellants were charged under section 302134 IPC for murdering the husband of PW 2 when he was Lying on a cot inside a hut and the PW 2 was sitting outside
The trial court disbelieved the case of prosecution that PW 2 was an eye witness of the occurrence
The trial court held that the details of the incident given by PW 2 were imaginary or improbable and therefore unbelievable there was several contradictions in her evidence which could not be accepted without any further corroboration and the evidence of certain other prosecution witnesses could not be safely relied an as furnishing corroboration to the statement of PW 2 in view of the several instances narrated in its judgment
The evidence of the doctor who conducted postmortem examination of the body of the deceased was that the death of the deceased could not have taken place soon after the dinner as he did not find any food particles in the stomach and small intestines of the deceased The trial court observed that the evidence of PW 2 that she had served food for the deceased at about 830 PM could not be accepted as probable as the fatal assault had taken place at about 9 PM
There was a delay of nearly 24 hours in giving the information to the police out post
The evidence for motive also was found to be discrepant 
Accordingly the trial court acquitted the appellants
On appeal the High Court reversed the judgment of acquittal convicted the appellants and sentenced them to undergo rigorous imprisonment for life
The High Court severely criticised the evidence of the doctor observing that our impression is that he hardly knows what he Is talking about and what is extraordinary is that the less he knows the more assertive he is No reliance what so ever can be placed on such evidence and no conclusion can be drawn either adverse or in favour of the prosecution from the opinion evidence of such a poorly qualified medical witness
Allowing the appeal 269  HELD There is no doubt that even where there is only a sole eye witness of a crime a conviction may be recorded against the accused concerned A provided the Court which hears such witness regards him as honest and truthful
But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill will is suggested
276 G H In the instant case a careful analysis of the evidence relating to the inordinate delay involved in the giving of the first information to the police and the other inherent inconsistencies in the evidence of the sole eye witness shows that her evidence cannot be considered as sufficient to find the accused guilty
The first information Exh P 10 itself appears to be one prepared after some deliberation
The motive suggested by the prosecution does not appear to be strong enough for the accused joining together to commit the murder of the deceased 276 H 277 A 275 C While there is no doubt that the jurisdiction of an appellate court is coextensive with that of the trial court in the case of an appeal against a judgment of acquittal it cannot totally brush aside the appreciation of the evidence by the trial court
The reasons for reversing a judgment of acquittal D should be cogent and if two views are reasonably possible the appellate court should be slow in interfering with the judgment of the trial court even if it is possible for it to take a different view after a process of laborious reasoning
277 G H 278 A In the instant case the High Court has not bestowed due care or the principles governing its jurisdiction
There is no proper discussion ill the judgment of the High Court about the various versions in the prosecution evidence about the giving of the first information to the police in their true perspective
The High Court has over simplified this issue and has observed
In this case bearing in mind the place where the incident occurred we find no unreasonable delay in reporting the incident to the police out post at Molgi and subsequently in giving the complaint at the Dhadgaon Police Station
It may be noted that the distance between Molgi and the village of the deceased was hardly three miles but the khabar  reached the Molgi police out post according to the prosecution nearly 24 hours after the incident
The reason given by the prosecution for this inordinate delay that PW 2 did not want the information to be lodged with the police until the arrival of her son PW I is hardly convincing since there are several different versions about the lodging of the information with the police out post and the earlier versions of the crime said to have been given by PW 2 which were in writing appear to have been suppressed
This important aspect of the case has been overlooked by the High Court
It would be unsafe to act upon the evidence of PW 2 and convict the appellants
277 G 278 A C 274 F G 279 A The comment by the High Court on the evidence of the doctor appears to be more severe than what it should have been particularly when his opinion that it was possible that the death in this particular case was instantaneous is not seriously challenged
278 G Hl 270