STATE OF GUJARAT Vs. DHIRIA BHAVJI

JUDGEMENT

(1.) This is an appeal by the State against the acquittal of the respondent who was tried by the Juvenile Court at Baria for an offence under section 302 I. P. C. for having caused the death of his aunt Bai Vali.

(2.) The prosecution case was that on the day of the offence i. e. on 8 the accused demanded seeds of maize from Shaku the mother of the accused and from Bai Jokhni and Bai Vali the two wives of Vesta who were then busy working in agricultural operations just near their hut; but the accused was told that there were no seeds to be spared. At that time deceased Vali went to the hut to drink water and was followed by the accused. After a few minutes Shaku heard the sound of an axe-blow and found Vali lying on the ground with injuries on her head and she saw the accused running away. Bai Vali died and the information was conveyed to the Police Station by Jokhni. In the meanwhile the accused went to the Police Station and was arrested there. After considering the evidence the learned Magistrate held that it is very clear that Vali died in consequence of injuries sustained by her and that it was the accused who inflicted the injuries. But the learned Magistrate then considered the offence case of the accused which was that his aunt Vali was a witch; that when the accused went to drink water she untied her hair started trembling and tried to catch hold of the accused when accused apprehending death attacked her. This defence version was accepted by the learned Magistrate as a justification for the murder. He therefore acquitted the accused. The State has therefore filed this appeal against the acquittal. The finding of the learned Magistrate that the injuries on the body of Bai Vali were inflicted by the accused and that as a result of these injuries Vali died is amply supported by the prosecution evidence. The two witnesses Bai Jokhni and Shaku were working with the deceased woman. They have deposed that when they were working in the maize crop the accused came to them and asked Shaku for some maize seeds but they could not spare any seeds for him; that deceased Vali then went to drink water and the accused followed her saying that he also wanted to drink water. Soon after the two witnesses heard noise of blows and went towards the house and saw Vali lying can the ground injured and the accused running away. As he was running away the accused told his grand-mother see your wife and the accused also went to the Police Station What the accused said to the Police Patel or at the Police Station would be inadmissible in evidence as confessions made to a Police Patel who is a Police Officer or made to a person in the presence of the Police Officer at the Thana. The learned Magistrate was therefore wrong in taking those confessions into consideration. But even if they are excluded the evidence of Bai Jokhni and Shaku and his conduct in going to the Police Station leave no doubt about the guilt of the accused. As regards the circumstantial evidence about the axe this also must be excluded from consideration as the P. S. I. and the Panch concerned were not examined; but the remaining evidence viz. that of Jokhni and Shaku is sufficient to justify the conviction of the accused.

(3.) The Doctor who examined the injuries has deposed that there were four incised injuries; one on the right temple second above the left temple and the third and the fourth going to inner and left eye-brow. According to the Doctor the front part of the skull was smashed and opened up a 4 x 1 1/2 transverse gap and the top of the brain was sliced off. The cause of death was fracture of the skull. He has also opined that in the ordinary course of nature the injuries were sufficient to cause death. In these circumstances the accused must be held to be guilty for the offence of murder. But the learned Magistrate thought that the injuries were inflicted by the accused under the belief that the deceased was a witch and that she was going to encompass his death by witch-craft. It is true that the accused is a nephew of the deceased and a Bhil by caste. Bhils may be believing in witch-craft. In his examination at the trial the accused denied having caused injuries to Bai Vali and added that he was submitting his statement in writing. He submitted written statement in which he pleaded not guilty and in the alternative he pleaded that at the time of the incident deceased Vali undressed her hair and raised her hand to catch the accused and so the accused had reason to believe that she was a witch and would eat him up and therefore in order to save himself he gave an axe-blow on the head of the deceased; that at that time the accused thought that his life was in danger and the people of his community strongly believe that if any woman was a witch and behaved in such a manner she would eat persons and so in order to save himself he killed Bai Vali.