GOVERNMENT OF BOMBAY Vs. ABDUL WAHAB

JUDGEMENT

(1.) This is an appeal by the Government of the Province of Bombay under Section 411A from an order of acquittal passed by Mr. Justice Divatia. The accused was tried on August 7, 1944, at the Criminal Sessions presided over by that learned Judge and he was charged as follows: That you, on or about January 30, 1944, at Bombay, did commit murder by intentionally causing the death of one Balwantsing Mansing, and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the High Court. The prosecution case was that on January 29, 1944, the accused in the company of one Chandraseker, a motor driver, went at night to Chembur. At Chembur in a hotel they found Balwantsing the deceased. It seems that Balwantsing, the accused and Chandraseker had a few drinks together and there was a quarrel between Balwantsing and the accused. The accused was assaulted and the result of his injuries was that his face became swollen. Next morning Chandraseker brought the accused back to Bombay. He was taken to the J. J. Hospital and his injuries were attended to. On the same day, that is, January 30, 1944, Chandraseker happened to be at Kalbadevi Road and he saw the accused coming from the direction of Pydhonie and going towards a urinal. He also saw Balwantsing standing on the opposite side of the road with four or five persons. Then it seems that Balwantsing and these four or five persons crossed over and came to the place where the accused was, and a fight ensued. The result was that Balwantsing was stabbed and also the accused was stabbed on his leg. As a result of the injuries received Balwantsing died and the prosecution case was that the accused had stabbed Balwantsing and he was guilty of the offence of murder. At the trial the prosecution led the evidence of Chandraseker who deposed to the facts which I have just narrated. They also called Gulab, another motor driver, who saw the deceased and the accused lying on the road, both of them in a pool of blood. They further called one Mukundlal Pitambardas Shah who also deposed to seeing the deceased and the accused lying on the ground. Apart from the evidence of these three witnesses Chandraseker, Gulab and Mukundlal, the prosecution also led the evidence of Keshav Laxman Mane, police constable No. 1336/B, who deposed to the deceased having made a statement to him when he took the accused and the deceased to the hospital, and according to him the deceased told him that the accused had stabbed him. There was further the evidence of Sub-Inspector Mahomed Umarkhan who recorded the statement of the deceased at the hospital. In this statement the deceased also gave the name of the accused as his assailant though he stated that he did not know the reason why the accused had stabbed him. And finally there was the evidence of Rao Bahadur Ramchandra Santuram Asavle who recorded the dying declaration of the deceased in the presence of the accused, and the deceased identified the accused from among a few persons who were present there as his assailant. The medical evidence as to the injuries inflicted on the deceased was very clear. There were four stab wounds, and a superficial injury in the nature of an abrasion on the person of the deceased, and the most serious injury was an incised wound 3/4" X 3/4" on the left side at the level of seventh rib midaxillary omentum protruding out. It was found when the deceased was operated upon that spleen had been ruptured. The deceased expired on February 11, 1944, at 1045, and according to the doctor the cause of his death was pericarditis and pneumonia following stab wounds. According to him if two of the injuries which he had described had not been treated the patient would die as a result of haemorrhage.

(2.) Although the accused was only charged with murder, the learned Judge in his charge to the jury directed them that if they found on the facts that the lesser offence was committed they could bring in a verdict on the lesser offence, and he explained the law both in regard to culpable homicide not amounting to murder and to grievous hurt. The jury brought in a unanimous verdict of not guilty on the charge of murder and also on the charge of culpable homicide not amounting to murder, and they brought in a divided verdict of not guilty by six to three on the charge of grievous hurt. On this verdict the accused was acquitted of the charge of murder and culpable homicide not amounting to murder. With regard to the, verdict on the charge of grievous hurt, the learned Judge disagreed with the jury, but instead of discharging the jury he felt bound by a decision given by Mr. Justice Mirza in Emperor V/s. Abla Isak (1931) I.L.R. 55 Bom. 520 and came to the conclusion that the accused could not be tried again on the charge of grievous hurt and therefore directed the accused to be acquitted and discharged.

(3.) From this order of Mr. Justice Divatia the Government of the Province of Bombay have appealed both on facts with leave obtained from the Court of Appeal and also on a question of law. It has been conceded by Mr. Munshi on behalf of the Crown, as indeed it was conceded by counsel for the prosecution before Mr. Justice Divatia, that there was no case on the charge of murder, but Mr. Munshi has pressed us to interfere with the verdict of the jury on the charge of culpable homicide not amounting to murder. It must be remembered that we are dealing with a unanimous verdict of not guilty arrived at by the jury on the charge of culpable homicide not amounting to murder, and the Court must always be reluctant to interfere with a verdict of the jury especially when it is a unanimous verdict. The Court must be satisfied that it is a perverse verdict, and the line of demarkation between a perverse verdict and an erroneous appreciation of evidence must be clearly and sharply drawn. The Court must be satisfied that no reasonable body of men could have arrived at the verdict at which the jury arrived. It is not sufficient that we reading the evidence might have come to a conclusion different from the one that the jury arrived at. We must "be satisfied that the only possible view on the evidence was the view that the accused was guilty and that the jury were manifestly perverse in the decision at which they arrived. We have carefully considered the evidence and in our opinion it is not possible to contend that in the circumstances of this case the verdict of the jury was manifestly perverse. Three or four considerations might be looked at. In the first place, the weapon with which the injuries were inflicted was not found, nor was there any evidence that the accused was carrying any weapon when the fight took place. Apart from the dying declaration and the statements made by the deceased to the two police officers to which I have referred, no witness was called before the jury who deposed to having actually seen the accused stabbing the deceased. Further, on the evidence it seems quite possible that it was Balwantsing and not the accused who was the aggressor. Balwantsing and his companions were seen on the opposite side of the road, the accused was going to the urinal on the other side, and it has been established on the evidence that the fight took place not on the side of the road on which Balwantsing and his companions were seen but on the side where the accused was proceeding on his way to the urinal. This seems to indicate that Balwantsing and his companions had crossed over and possibly they were the aggressors in the fight which ultimately ensued. Further, the line between culpable homicide not amounting to murder and grievous hurt is a very thin and subtle one. In the one case the injuries must be such as are likely to cause death ; in the other, the injuries must be such as endanger life; and it is difficult for us to say that on the medical evidence it was not possible for the jury to take the view that the accused was not guilty of culpable homicide not amounting to murder. As a matter of fact, as we have pointed out, the learned Judge himself directed the jury that on the facts it was possible for them to come to a conclusion that the accused was guilty neither of murder nor of culpable homicide not amounting to murder, but only of grievous hurt. Under the circumstances we refuse to interfere with the unanimous verdict of not guilty arrived at by the jury on the charge of culpable homicide not amounting to murder.