KANBI BABU Vs. STATE

JUDGEMENT

(1.) THE appellant Babu alias Kurji Valji is convicted of murder and robbery Under Sections 302 and 397, Penal Code by the Additional Sessions Judge, Gondal, and sentenced to transportation for life and seven years' rigorous imprisonment respectively, the sentences being ordered to run concurrently. The deceased Manu Ramji was aged about 12 years and lived at Gomta with his brother Bhikhu and an elder widowed sister Jivati. On the day of the offence, 1-4-1954, he attended school and after returning from school at 11 A. M. he took his meals and then went. out. Jivati was not at the house then, but on her returning in the afternoon she enquired about Manu since she wished to take him along to Gondal for seeing a circus, but was told that Manu had gone out and so she went in the company of some women and returned to Gomta the next day at about 11 A. M. Bhikhu and his wife Diwali were under the impression that he might have gone to Gondal with Jivati, but as he was not with Jivati they become anxious and started a search at certain villages but the search proved unavailing, and at about 11 A, M. on 3-4-1954 news was brought to them that the dead body of a boy was floating in a well at Rellavav, a distance of more than a mile from the village. It was found to be Manu's dead body and was ; taken out and the police was then informed. Jivati lodged information with the police at about 4-15 P. M. the same day, suspecting the accused Babu of having murdered Manu and having robbed him of his gold 'murkis' (ear-rings) and a gold 'omkar'. After investigation the accused was charged with the abovesaid offences and has been convicted by the learned Judge.

(2.) THE defence of the accused was a total denial of all the relevant circumstances appearing against him. He stated that he was lying ill with temperature at his house since about a week and had not gone out, and he denied having met Jivati and others or made enquiries with them regarding the deceased, or having shown the scene of the offence or the place where the 'murkis' and 'omkar' had been concealed or having produced them. In fact he denied having had anything to do with the offence,

(3.) THE evidence against the accused is purely circumstantial and it is well settled that before an accused can be convicted on purely circumstantial evidence, it must be of such a character as to exclude all possibility of the accused being innocent. It must conclusively prove that it was the accused and none else who committed the offence and the circumstances must be altogether incompatible with his innocence. The accused is from Gomta and is aged about 16 or 17 years. His lather Valji died while he was an infant, and his mother remarried thereafter and he has been brought up by his grandmother Radlia, and lives with her and one of his uncles, Naran Mavji. Radha and Naran were at their wadi at Gomta on the day of the occurrence and their evidence is that the deceased had come there and he and the accused were together at the wadi, Radha left for home in the afternoon at about 5 P. M. when the deceased was still at the wadi in the company of the accused. Both Radha and Naran say that the deceased had not some home that night nor had taken his evening meal. Naran was sleeping at the fodder house and according to him the accused had gone there at about midnight and said that Manu did not return and haci run away. The accused was aware that a search was being made for Manu by his relatives and he went to Manu's. house in the evening of 2nd April and enquired from Jivati and others whether Manu had come and what had happened to the search, and he told them that he and Manu were together till the previous evening, but Manu had refused to return home with him. That is proved by the evidence of Jivati herself and of Dewali, Hari, Dudhi Khii. ia and Mithi Arjan, who were present at the time the accused made the enquiry. The accused happened to meet Jetha Daya, a cousin of Jivati, and one Chhagan Devsi in the bazar the same evening and he disclosed to them that Manu had gone away towards the main road and said that they might look up wells in that direction. The accused has no doubt denied all these facts, but they are proved by the evidence of witnesses of whom Radha and Naran are the accused's grandmother and uncle, and by others who are in no way interested in falsely involving him. Therefore it is proved conclusively that the deceased and the accused were together, at any rate, till the evening of 1st April and the deceased was last seen alive in his company. The enquiry which the accused made with his uncle and with Jivati and the way he informed Jetha indicate that his conscience was biting him and he could not bear it any longer. He was apprehended and was brought from his wadi to the village the same evening, but he ran away on the pretext of going to ease himself and after wandering about the whole night he went to the wadi of his uncle Vallabh Mavji at Kolithad, about 8 miles from Gomta, at about 10 a. m. , the next morning. The police went in search of him and ultimately found him at Kolithad in the afternoon of the 4th April. He was brought to Gomta and was arrested the same night at 10 p. m. This conduct standing by itself may not have much significance but viewed in the light of the other circumstances it clearly points to his guilt.