MOJIYA RATNA BHIL Vs. STATE

JUDGEMENT

(1.) THE appellant Mojiya s/o Ralan Bhil (25) of Sagur Bhagur, Thana Gogava, has been convicted under Section 302 I. P. C. , for the murder of Ganpat Ahir (a fellow villager) on the night of 3-12-1958 while he was walking towards his village Sagur Bhagur from the bus stop at village Temarna about two miles away, by hitting him several times with a knife, with the intention, of killing him, for the purpose and relieving Him of most of the sum of about 800/- and odd which he was bringing home from a merchant at Khargone. The learned Sessions Judge has awarded the lesser penalty of life imprisonment, because: "ganpat who was advised by numerous witnesses not to undertake a journey at night with money, yet undertook the journey without heeding their advice, and gave a cause and temptation to the accused to take recourse to this ghastly crime, and also in view of the fact that the accused committed this crime out of total poverty and desperation. " He himself had denied everything, and pleaded not guilty. But it was not accepted.

(2.) THIS case raises three important questions; first, as to the sufficiency in quality of circumstantial evidence on which alone the conviction is based; that is to say, if the chain should necessarily be long if the links are all just as firm and sound; secondly, the propriety of admission of further evidence in the form of the serologist's report at the stage of appeal and its probative effect; and thirdly, in principle, in the absence o[ any prayer by the State it has no practical consequences here, the satisfactoriness of the reasons given by the learned Sessions Judge for imposing the lesser penalty. * * * * *

(3.) WHEN the appeal came up before us, we heard the parties as to whether the serologist's report which had been with the authorities all the time, should he brought in evidence in a formal manner. The wording of Section 428 (2) Cr. P. C. , is wide enough to permit this subject to the usual caution; first, that the prosecution should not be enabled by the further evidence, to make out a case different from the one already on record; secondly, that the new evidence should be put separately to the accused and he should be given an opportunity to explain it and if be thinks necessary, to cross-examine not only the new witnesses but also any of the other witnesses in the light of the new material and, finally, to lead evidence of his own. If these steps are taken, there is no objection to the admission of further evidence in circumstances similar to the present one. If the process of admitting further evidence is comparatively simple, then it would be proper for the appellate Court itself to do it as this would save public time and harassment to the parties. On the other hand, if it is likely to be long and complicated, such as the summoning and the examination and cross-examination of several witnesses or the handling of several exhibits, it should go to the original Court. In this case, however, it was easy in this Court itself to admit the serologist's reports into evidence and explain them to the accused and take his additional defence in this regard.