RAMJI SURJYA PADVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Criminal Appeal under Sec. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act No. 28 of 1970) is filed by two appellants - Ramji Surjya Padvi and Bhikji Surjya Padvi accused Nos. 2 and 4 in Sessions Case No. 102 of 1974 on the file of the Additional Sessions Judge, Dhulia against the judgment of the High Court of Bombay in Criminal Appeal No. 467 of 1975 by which it reversed the judgment of acquittal passed by the Sessions. Court on a charge under Section 302/34 of the Indian Penal Code and imposed the sentence of rigorous imprisonment for life on each of them after holding them guilty of the charge under Section 302/34 of the Indian Penal Code.

(2.) 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. 1 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 Dhadgao 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, Surjabai (P.W. 2) were staying in a hut which they had constructed near the place where they had grown watermelons in order to keep watch over the watermelon crop. They used to cook their food in the hut. On March 26, 1974 at about 9.00 P.M. when Prabhat Singh was lying on a cot inside the hut, Surjabai was sitting outside near an agiti in which she had kept fire and was warming 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 to 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 (P.W. 3) in the presence of two of her servants Bapu and Arshya who have not been examined in the case. It is stated that she sent another servant of her's Bamanya (P.W. 8) to go to a village called Nalagavi where her son, Ratan Singh (P.W. 1 ) had gone on the previous day to fetch him. She thereafter sent for Gumba (P.W. 5) who was formerly the Police Patil of her village and narrated before him the incident in which her husband had been killed. It is stated that she mentioned the names of the four accused as the assailants to P.W, 3 Bharatibai as well as to Gumba (P.W. 5). It is further stated that Surjabai. Gumba. Bharatibai and the two servants, Bapu and Arshya and some others went to the place where the dead body of Prabhat Singh was lying. They also sent for Detka (P.W. 9) who was the Police Patil at that time. Ratan Singh, according to the prosecution, reached the place at about 5.00 P.M. on being informed by Bomanya (P.W. 8) about the incident. Surjabai narrated the whole story again before Ratan Singh (P.W. 1). Thereafter P.W. I went to the village Molgi where there was a police outpost along with Detka (P.W. 9) and orally mentioned to the Head Constable by name Keval Bedse (P.W. 13) about the incident. P.W. 13 prepared the outpost 'khabar' (Exh. 36) in the prescribed form and sent P.W. I Ratan Singh along with the outpost khabar to the Police Station at Dhadgaon. P.W. 13 thereafter left for the scene of occurrence to keep watch over the dead body. Ratan Singh is stated to have hired a jeep and gone to Dhadgaon and reached that place at about 2.15A.M. on March 28, 1974. There he met the Police Sub-Inspector at the Police Station and made a statement (Exh. 10) before him which was recorded by him. In that statement he narrated what he had heard from his mother at about 5.00 P.M. on 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. 1 to 3 on the evening of March 28, 1974 accused No. 4 on the next day and after completing the investigation, he filed the charge-sheet against them for an offence punishable under Section 302/34 of the Indian Penal Code. The learned Sessions Judge who tried the case disbelieved the case of the prosecution that Surjabai was an eye-witness of the occurrence and acquired 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, accused No. 1, Damji and accused No. 3, Surjya had died. This fact perhaps was not brought to the notice of the High Court. Before the High Court, the accused were represented by an amicus curiae. The High Court set aside the judgment of acquittal and convicted all the accused including accused No. 1 and accused No. 3, who had died earlier, under Section 302/34 of the Indian Penal Code and imposed on each of them the sentence of imprisonment for life. Against the judgment of the High Court, accused No. 2 and accused No. 4 preferred this appeal before this Court. When the appeal came up for admission, by an order made by this Court on August 18, 1980, the appeal of Bhikji (accused No. 4) was dismissed. The notice of appeal was issued only in so far as Ramji (accused No. 2) was concerned.

(3.) Shri M. M. 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.