AHER MAYA VISA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is directed against the judgment of the High Court of Gujarat dated August 4, 1980 passed in Criminal Appeal No.1114 of 1979 by which the judgment of acquittal in favour of the accused/appellants passed by the learned Sessions Judge, Bhavnagar on July 25, 1978 in Sessions Case No. 100 of 1977 was set aside and the appellants were convicted under S. 302 read with S. 34, Indian Penal Code and each of the said accused was sentenced for imprisonment for life. The appellants were committed to Sessions Trial for an offence under S. 302 read with S. 34, IPC. for causing death of Samat Mansur and his brother, Vajsur Mansur on October 7, 1977. The prosecution case in short is that the said two deceased persons had gone to the house of one Nathiben at village Bodki to mourn the death of her husband. Both the said deceased persons stayed at the house of one Rajabhai, P.W. 1. The said Rajabhai was a relation of the deceased persons because the deceased, Vajsur was married to the sister of Rajabhai. On the morning of October 7, 1977, the said deceased persons again went to the house of Nathiben and after taking tea at her place, they had left for the bus stand. Nathiben, P.W.3, has a daughter named Raniben, P.W. 4 and she has also a son, Bhikha, P.W. 2. Nathiben, his son Bhikha and the daughter Raniben also accompanied the deceased persons to the bus stand because Nathiben and Bhikha also wanted to go with Raniben to the village Bhagura where Raniben was married. To reach Bhagura one has to get down at Borda bus stand for a change. The deceased persons and Nathiben, Raniben and Bhikha travelled in the same bus and all got down at Borda bus stand at about 7-30 in the morning. It is the case of the prosecution that as soon as the bus left the bus stand four accused persons came with axes and attacked the deceased persons by giving blows and first of all inflicted axe blows on Sarnat. Nathiben tried to intervene and in the process she received an injury and thereafter desisted from intervening. Seeing Mansur being attacked, Vajsur started running but he was chased by all the accused persons and was also given blows with axes and he also fell down about 14 feet away near a house which was under construction. Both the deceased persons expired on the spot. Nathiben, thereafter, requested her son, Bhikha, to go to the village Bodki and inform Rajabhai. Raja was informed by Bhikha and Raja and Bhikha both came to Borda bus stand and thereafter Raja went to Datha Police Station and lodged the first information report at about 10 a.m. on the same day. P.W. 13, Police Officer, in charge of the Police Station, registered the offence and sent two constables at the place of occurrence. The Officer also reached the place of offence at about 1-00 p.m. and prepared inquest panchnama. The dead bodies of the two persons were sent for post mortem examination. After recording the statement of Nathiben she was sent to Mahuva hospital for treatment. The Police Officer also recorded statements of Bhlkha and some other persons. Later on, the statements of the Driver and the Conductor of the bus were also recorded. On October 9, 1977, the accused persons were arrested and on that day the statement of Raniben was also recorded. All the said four accused persons were committed for Sessions Trial in the Court of the learned Sessions Judge, Bhavnagar. The learned Sessions Judge, however, by his judgment dated July 25, 1978 acquitted all the four accused persons inter alia on the finding that the case against the accused persons could not' be established beyond reasonable doubt and the evidences of the eye witnesses, namely, P.W. 2, P.W. 3 and P.W. 4 could not be accepted. The learned Sessions Judge was of the view that in view of the custom prevalent in the Aher community to which the eyewitnesses belong, Nathiben who lost her husband only four days back was not to move out of the house for about 1 1/4 months. The learned Sessions Judge also noted that although, according to the prosecution case, Nathiben also suffered injury at the hands of the accused persons, Bhikha, another eyewitness being present at the place of occurrence must have seen such assault on his mother. Hence he could not have missed to report such incident to Raja, P.W. 1. As such incident was not reported to Raja, in the FIR lodged by him, such fact was not stated by Raja. The learned Sessions Judoe by indieating his reasonings had come to the finding that the case as sought to be made out by the prosecution suffered from various infirmities. As such it was not possible to come to a finding that the said eye-witnesses were actually present at the time of occurrence and as such they could give evidences about the, commission of offence by the,accused persons. In that view of the matter, thejudgment of acquittal was passed by the learned Sessions Judge.

(2.) As aforesaid, on the appeal against the acquittal being preferred by the State of Gujarat, Criminal Appeal No. 1114 of 1979 came up for consideration before the Division Bench of the High Court of Gujarat. The High Court has noted that the place of occurrenceisundisputed because admittedly the dead bodies were found at the spot mentioned in FIR. The nature of the injuries, as noted at the time of post mortem examination, also tallied with the prosecution case, namely, infliction of injury by axe. The High Court has indicated that in the light of such admitted position, the evidences of all the eye-witnesses are to be appreciated. The High Court has indicated that the evidences of the said eye-witnesses were not accepted by the learned Sessions Judge because, according to the learned Sessions Judge, Nathiben had lost her husband only four or five days back an the entire family was in mournlng mourners had been calling on the fiamily-Precisely for the said reason, the deceased had been to the house of Nathiben one day earlier. In such circumstances, the learned Sessions Judge was of the view that it was not expected that Nathiben would come out of the house and accompany the daughter, Raniben (P.W. 3), to the house of her husband in a distant village. For the same reason, the learned Sessions Judge was also of the view that shortly after the death of the father it was not expected that Raniben should leave her widowed mother and would intend to go back to her husband's house. It was for this reason, the learned Sessions Judge had doubted the correctness of the prosecution case that Nathiben and her son, Bhikha, had accompanied Raniben and they had travelled in the same bus by which the accused persons also travelled and by that process got down at the bus stand at the village Borda where the murder had taken place. The learned Sessions Judge, considering the evidences adduced on behalf of the eye-witnesses that there is a custom in the Aher Community that the widow does not leave the house at least for aperiod of 45 days after the death of the husband, held that it was all the more improbable that Nathiben had in fact left her house and accompanied her daughter. The High Court has, however, held inter alia that in the written Code of Conduct of the Aher Community, there is no mention that widow should not leave the house for a period of little over one month from the date of the death of the husband. The High Court was of the view that Nathiben had no enmity' so far as the ccused persons are concerned and it is not expected that the said eye-witnesses should falsely implicate innocent persons on a charge of murder. The High Court has noted that if it is assumed that there is a custom in even the other Community that, a widow does not leave her house for some period after the death of the husband, simply because Nathiben had left the house by ignoring the custom, the veracity of the statement of Nathiben should not be doubted. The High Court has noted that essentially all the said eye-witnesses have stated how the murder had taken place and there is consistency in their depositions. According to the High Court, failure on the part of the Bhikha to inform Raja that her mother also suffered injury when she tried to prevent the murderous assault is not at all improbable and for such lapse his evidence is not to be discarded. The High Court has also held that an injury on the forehead of Nathiben which was likely to be caused by a sharp cutting instrument, was noted by the Medical Officer on the date of murder when she was sent by the Police for medical examination. Such injury also conforms with the case of the prosecution that she had also suffered injury at the hands of the assailants when she tried to prevent. The High Court has referred to the deposition given by the Conductor of the bus, Musabhai (PW.5). He has stated that at village Borda 7 persons got down and 4 passengers boarded the bus and in the cross-examination, he had admited that the bus had reached Borda at about 7- 10 to 7-15 a.m. According to the prosecution case seven persons travelled including the deceased persons because from the village Borda two of the deceased persons and Nathiben, Bhlkha and Raniben and her two children boarded the bus and all of them had got down at the bus stop of Borda. The prosecution case, therefore, stands corroborated by the evidence of the conductor. A strong adverse inference was drawn by the learned Sessions Judge against the prosecution case because the incident of death was not reported to a relation of one of the deceased who had been married in the village Borda. The High Court has held that Raja was also a very close relative of the deceased and he was living in the village Bodki which was also quite close to village Borda and if Nathiben had decided that Raja should be informed first of all, there was nothing improbable or peculiar. It may be noted here that as a matter of fact on being asked by the Court Nathiben has stated in her deposition that she could not remember at that time that there was also a relation of one of the deceased in the village Borda. The High Court has also noted that the village Bodki is at a distance of only three kilometers. If after being informed by Bhikha about the said incident Raja had again travelled three kilometers distance to reach the place of occurrence and thereafter had been to the Police Station and lodged the FIR by, 10-00 a.m., it must be held that no delay was caused in lodging the FIR. The High Court has also held that the learned Sessions Judge drew an adverse inference against the prosecution case because Nathiben could not state as to by whom she sustained the injury. According to the High Court when four persons were attacking the deceased persons and in the process of her attempt to intervene she has received an injury, it is quite likely that she may not be able to know as to by whom she received the injury. On the contrary, her evidence appears to be truthful. The High Court is of the view that the prosecution has been able to establish that the said eye-witnesses had travelled with the deceased persons in the bus and they had to get down at the Borda bus stop. The evidences adduced by the eye-witnesses are natural and trustworthy and they have not been shaken in cross-examination. The High Court has held that from the nature of the injuries inflicted on the deceased persons and from the fact that Vajsur was chased and was also done to death by inflicting axe blows at a distance of 14 feet from the bus stop, the case of common intention of the accused persons to murder both the brothers was established. The High Court has referred to a decision of this Court in the case of Pala Singh v.. State of Punjab, reported in AIR 1972 SC 2679 and also another decision of this Court made in the case of K. Gopal Reddy v. State of Andhra Pradesh, AIR 1979 SC 387 where occasion for interference by the High Court in an appeal against the order of acquittal was taken into consideration and the principles laid down by the Privy Council in the decisionreported in AIR 1934 Privy Council 227 (2) were discussed. In Pala Singh's case (supra) the Supreme Court has observed that "substantial and compelling reasons" good and 'sufficiently cogent reasons' tended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion but in doing so the appellate court should consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its own judgment which led it to hold that the acquittal was not justified.

(3.) In Gopal Reddy's case (supra) this Court has noticed that if two reasonable and probable views, on the appreciation of evidence, are possible, then one must necessarily concede the existence of a reasonable doubt. But fanciful and remote possibility must be left out of account. Referring to the said decisions, the High Court is of the view that the view taken by the learned Sessions Judge is not at all a reasonable and probable view so that there is compelling reason not to disturb the finding made by the learned Sessions Judge by reappreciating the evidence. Accordingly, the order of acquittal passed by the learned Sessions Judge was set aside by the High Court and all the accused persons were convicted under S. 302 read with S. 34 of the Indian Penal Code and they were sentenced to imprisonment for life.