GOVERNMMENT OF BOMBAY Vs. INCHYA FERNANDEZ

JUDGEMENT

(1.) THIS an appeal by the Government of the Province of Bombay against the order of Chagla J. acquitting the two accused on the unanimous verdict of not guilty by the jury. The charge against the accused was that on August 26, 1943, they committed the murder of one Mahadeo Khotu and aided and abetted each other in the commission of the said offence. The prosecution relied on the evidence of one eye-witness Shankar and of three other persons to whom the deceased was alleged to have said that accused No. 1 had stabbed him. There was also the evidence of one Santan to whom, it was alleged, accused No. 1 had confessed having stabbed the deceased on the night of the murder. The prosecution also relied on certain circumstances, viz. human blood stains having been found on the clothes of the two accused, the knife with which the crime was alleged to have been committed being found by the police on account of a statement alleged to have been made by accused No. 1, and a pair of shoes alleged to belong to accused No. 2 being found near the scene of offence on account of a statement alleged to have been made by him to the Police.

(2.) THE learned Judge in his charge to the jury summed up the evidence and pointed out the important discrepancies in the depositions of witnesses. THE jury returned a unanimous verdict of not guilty, and the learned Judge, being bound by that verdict, acquitted the two accused. He, however, gave a certificate that it was a fit case for appeal on an application made by the Government. THE appeal having been thereafter admitted, it now comes for final hearing.

(3.) IN discussing the power of this Court under the new section it was observed by the learned Judge : If we are a Court of Appeal on facts, then we have to consider not whether the verdict of the jury was unreasonable or perverse or whether on the evidence led before the Court in our opinion the verdict was justified but we must approach the case as we would approach a conviction by a Magistrate when he gives an appealable sentence or in the case of a conviction by a Judge in the mofussil tried by assessors.