RAMJI SURJYA & ANOTHER versus STATE OF MAHARASHTRA

RAMJI StJRlY & ANOTHER

STATE OF MAHARASHTRA.

May 13, 1983

[E.S. VENKATARAMIAH AND V. BALAKRISHNA ERADI, JJ.]

Supreme Court (Enlargement of Criminal Appe/Jate Jurisdiction) Act, 1970-S. 2--Accused acquitted by trial court but convicted by High Court, Corroboration of evidence of sole eye witness-When necessary. Jurisdiction 01· appellate court co-extensive with that of trial court-Appellate court cannot ·totally brush aside appreciation of evidence by I rial Court. Appellate court to give cogent reasons/or conviction should be slow in interfering.

The appellants were charged under section 302134 I.P.C. for murdering ti1e husband of P.W. 2 when he was lying on cot inside hut and the P. W. 2 .was sitting outside. The trial court disbelieved the case of prosecution that P.W. 2 was an eye witness of the occurrence. The trial court held tha·t the details of the incident givell by P.W. 2 were imaginary or improbable and; therefore, Unbelievable ; there was several contradictions in her evidence which could not be accepted without any further corroboration and the evidence of certain other prosecution witnesses could not be safely relied Qil as furnishing corroboration to the statement of P.W. 2 in view of the several instances narrated in its judgment. The evidence of the doctoi who conducted postnlo~tem examination of the body of the deceased was that the death of the deceased could not have taken place soon after the dinner as he did n•Jt find any food particles in the stomach and small~intestines of the decJased. The trial court· observed that the evidence of P.W. 2 that she had served food for the deceased at about 8.30 p;M. could not be accepted as. probable as the fatal assault had taken place at about 9 P. M. There was delay 9.f nearly 24 hours in giving the information to the police out post. The evidence for motive also was found to be discrepant. Accordingly the trial court acquitted · the appellants.

On appeal the High Court reversed the judgment of acquittal, convicted the appellants and sentenced them to undergo'rigorous imprisonment for life. The High Court severely critised the evidence of the doctor observing that. "our impression is that he hardly knows. what he is talking about and what is extraordinary is that that the less he knows the more assertive he is. No reliance what so ever can be placed on such evidence and no conclusion can be drawn either adverse or in favoU.r of the prosecution from the: opinion evidence of such poorly qualified medical witness".

Allowing the appeal,

HELD : There is Do doubt that even where there is only sole eye witness of crime, conviction may be recorded against the accused· concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of solitary witness particulafly where such witness also happens to be closely related tO the deceased and the accused are those against whon1 some motive or ill will is suggested. [276 G-H]

In the instant case careful analysis of the evidence relating to the inordinate delay involved in the giving of the first information to the poliCe ·and the other inherent inconsistencies in the evidence of the sole eye witness shows that her evidence cannot be considered as sufficient to find the accused guilty. The first_infonnation· (Fxh. P. 10) itself appears to be one prepared after some deliberation. The niotive suggested by the prosecution does not appear to be strong enough for the accused joining together to commit the murder of the deceased [276 H, 277 A, 275 C]While there is no doubt that the jurisdiction of an appellate court is co-extensive with that of the trial court, in the case of an appeal against judgment of acquittal it cannot totally brush aside the ·appreciation of the evidence by the trial court. The reasons for reversirig judgment of acquittal should be cogent and if two views are reasonably possible, the appellate court should be slow in interfering with the judgment of the ~rial court, even if it is possible for it to take different view after process of laborious rea~oning.

[277G-tt,, 278 A]

Jn the instant case the High Court has not bestowed due care on the principles governing: its jurisdiction. There is no proper discussion in the judgment of the High Court about the various versions in the proseculion evidence about the giving of the first information to the police in their true perspective. The High Court has oVer-simplified this issue and. has observed. "In this case, bearing in mind the place where the incident occurred, we find no unreasonable delay in reporting the incident to the police out~post at Molgi and subsequently in giving, the complaint at the Dhadgaon Police Station°. It may be noted that the distance between Molgi and the village of the deceased was hardly three miles but the 'khabar• ,reached the Molgi police out post, according to the prosecution nearly 24 hours after tbe incident. The reason given by the prosecution for this inordinate delay, that P.W. 2 did not want the information to be lodged with the police until the arrival of her son P.W.· 1, is' hardly convincing since there are several different versions about the lodging of the information with the police out post and the earlier versions of the crime said to have been given by P.W. 2 which were in writing appear to have been suppressed. This important aspect of ·the case has been overlooked by the High Court. It would be unsafe to act upon the evidence of P.W. 2 and convict lhe appellants. [277 G, 278 A-C, 274 F-G, 279 A]

The comment by the High Court on the evidCnce of the doctor appCars to be more severe than what it should have been particularly when his opinion that 'it was po~sible that the death in this parti~l,llar ca~e wa~ ~nstan,ta,neousi Is not seriously challeng~d: {278 G-Hj

CR!MIN,;L APPELLATE.JURISDICTION: Criminal.Appeal· No. 429 of1980 .•

From the Judgment and Order dated the 21st December, 1979· of the High Court of Bombay in Criminal Appeal No. 467 of 1975.

M. N. Sharma for the Appellants. (Amicus Curiae).

J. S. Akartey and M.N. ·Shroff for the Respondent

The Judgment of the Court was delivered by

VENKATARAMIAH, J. This Criminal Appeal under section 2 of the Supreme Court (Enlargement of Criminal . Appellate Jurisdiction) Act, 1970 (Act No. 28 of 1970) is filed by two appellants Ramji Surjya Padvi and Bhikji S)lrjya Pad vi accused Nos. 2 and 4 in Sessions Case No. 102 of 1974 on the file of the Additional Sessions Judge, Dhulia against the judgment of the High Court· of Bombay in Crimin.al Appeal No. 467 of 1975 by which it. reversed the.judg-ment of acquittal passed by the Sessions Court on charge under section 302/34 of the Indian Penal Code and·. imposed ;the.sentence of rigorous imprisonment for life on each of them ~fter holding them guilty of the charge under section 302/34 of the Indian Penal Code.The facts of the case are these: Damji (accussed No. I), Ramji (accussed No. 2) and Bhikji (accused No. 4) are the sons of Surjya Tulya Padvi (accused No. 3). Accused Nos. I to 4 are residents of village called Veri in taluka Akkalkuwa.. The said village was by the side ofa rivercalledMotbi Nadi. In,th,:month of March, 1974, one .Prabhat .Singh (the deceased) resident of Mojapada which is hamlet of Bhagdari. village within the limits of Dhadgaon police station bad. grown watermelons on. portion of the bed of the Motbi Na4l r'i~er near the. village, Veri. The distance be_tweel).. the place where watermelons had been grov.:n by the decease!) and, his village was about two miles. It is.the case of the pro_secµtion thai during the last week of March, 1974, the deceased' Prabhat Singh and ·his wife, Surjabhai (P.W. 2) were staying in hut which they had constructed near the place where they had grown watermelons in order to keep wa):ch over the watermelon crop.. They. used. to cook their food· in the hut. On Marc)l 26,. 1974. at, about 9,00 P,M. when Prabhat Singh was lying on a- cot inside the hut, Surjajlai was sitting 011[tsi4e near an agiti in which she bad kept fire. and· was warmine ]herself.. It is the case. of. the prosecution, that· at that r time,•. the Joun· accused. persons referred . to above came there .. and when. they .. were questioned. by. Surjabai, they told that they ... had. come. to.smoke. tobacco. At that time.accused No .. 2;Ramji. was armed· with an, axe. The· accused did not, however, stay there for· the purpose ofsmoking, but suddenly entered.the hut where accused Nos.!, 3 and 4, Damji,., Surjya and .Bhikj~ caught hold of Pra_bhat Singh. and. Ramji (accused., No .. 2) gave number of blows with an axe- on: the head,. face.an<!, neck.of Prabhat Singh. Thereafter they ran away. Surjabai out .of.. fear went. near big stone in nearby hillock and concealed.hersel( behind. it. She continued.it sit there for some time .and.on- returning to the scene of ·occurrence. she foun<l. that her. husband_ had died •• Thereafter she·. went to her, village.in, the, early bouts , of MarGh'27, 1974 and-narrated the. incident to her, daughter-in,Ja;v. Bharatibai-(P.W. 3)inthepresenceof two. of her servants Bapu. aud.Arsh~a . . who have not been examined in· the:case. It is stated. that. she. sent another servant of her's Ba man ya (P. W. 8) . to go to .. village .called Nala·gavi where· her son, Ra tan· Singh (P.W. i) had gone on .the previous day to fetch.him. She thereafter sent for G.umba (P.W. 5) who was formerly, the Police Patil of her village and.narrated;before him the incident in which her .husband. had been, killed.. 1t .is stated that she mentioned the names of the .four. accused·.as tlJe.aosailants to. P.W. 3 Bharatibai as well as·1o Gumba (P.W. 5). It.is furtheutated ·that Sµrjabai, Gumba, Bharatibai and the two servants, ,Bapu, an.cl Arshya and some others went to the place where the dea<l. body of. Prabhat Singh was lying. They. also sent for Detka (P.W. 9) who was the Police Patil at that time. Ratan Singh, according to the. prosecution, reached the place at about 5.00 P.M: on being informed by Bamanya (P.W. 8) about the incident, Surjabai narrated the whole story again before Ratan ·Singh (P.W. I). Thereafter P.W. I went to. the village Molgi where there was police out. post alongwith .Detka (P.W. 9) and orally mentioned to the Head Constable by name Keva) Bedse (P.W. 13) about the incident. P.W. 13' prepared' the out post 'khabar' (Exh. 36) in the prescribed form and sent P.W. I Rat~n Singh alongwith the out post khabar to the Police Station-at· Dhadgaon.. P.W. 13« thereafter lefr for; the, scene of occurrence te keep watch' over the dead· body. Ratan. Singh· is stated· to· have hired-_a jeep and gone to Dhadgaon and·! reached that place• at about 2.[1]15 A.M. on March· 28, 1974:· There he. met the.police Sub Inspector at the Police Station. and made· statement (Exh .. JO) before him .. which was recorded by him In. that statement he. · )larratedwbat he IJad IJeard from his motji.er at ;ibout.5.00•P.M; on

March 27, 1974. In th.at statement, the names of the four accused are found as the assailants. Thereafter the police Sub Inspector came to the spot on the morning of March 28, 1°974 and carried on further investigation. He arrested the accused Nos. 1 to 3 on the evening of March 28, 1974 accused No. 4 on the next day and after completing the investigation, he filed the charge sheet against them for an ·offence punishable under section 302/34 of the Indian Pena' Code. The learned Sessions Judge who tried the case disbelieved the case of the prosecution that Surjabai was an eye witness of the occurrence and acquitted the accused: Against the said judgment of acquittal, the State Government preferred an appeal before the High Court. It would appear that during the pendency of the appeal, accused No. I, Damji and accused No. 3, Surjya had died. This fact perhaps was not brought to the notice of the High Court. Before the High Court, the accu{ed were represented by an amicus curiae. The High Court set aside the judgment of acquitt~l and convicted all the accused including accused No. I and •·xused No. 3, who had died earlier, under section 302/34 of the Indian Penal Code. and imposed on each of them the sentence o\ imprisonment for life. Against the judgment of the High Court, accused No. 2 and accused No. 4 preferred this appeal before this Court. When the appeal came up for admission, by an order made by .this Court on August . 18, 1989, the appeal of Bhikji (accused No. 4) was dismiso;ed. The notice of appeal was issued only in so far as Ramji (accused No. 2) was concerned.

Shri M. N. Sharma who has appeared in this case as amicus curiae has raised among others two points before us-(1) that the case of the prosecution was concocted one and (2) that in any event since it was not possible to say that two opinions were not possible about the guilt of the accused, it was not opi;n to the High Court to reverse the judgment of acquittal of the Sessions ·Court.

We shall first deal with the manner in which first information was given to the police in this case. It is true that in the statement (Exh. JO) of Ratan Singh (P.W. 1) which is stated to have been recorded at 2.15 A.M. on March 28, 1974 at the Dhadgaon Police Station· we find the names of all the four accused and brief des-cription of the incident which is alleged to have been narrated by Surjabai (P..W. 2) at abont 5.00 P.M. on March 27, 1974 before Ratan Singh (P.W. 1), Wi\a\ value should!be attached to the contentsof this document depends on the evidence in the case. According to the prosecution, th.e incident took place at. about 9.00 P.M. on March 26, 1974. Surjabai (P.W. 2) is stated to be the sole-witness of the crime. She is stated to .have disclosed all the particulars relating to the incident on the morning of March 27, 1974 to Bharatibai (P.W. 3) and some others as stated above. Surjabai has stated in the course of her deposition that she had told the Police Patil that she wanted complaint to be lodged, thereafter the Police Patil wrote something and that writing was taken by Ratan Singh (P.W. I) to Molgi where the police out post was situated. She has also stated that she had instructed the Police Patil ·and others that nobody should go to lodge complaint till the arrival of her son, Ratan Singh (P.W. 1). The writing referred to above which accord· ing to the events disclosed in the prosecution case is the first docu- . ment containing the gist of the version of Surjabai regarding the incident. That document is not forthcoming in the case. Bharatibai. (P.W. 3) hasa different version to give about the lo\lging of the complaint. She has stated in her cross-examination : "My mother-in-law Surjabai had told Gumba, Police Patil that he could lodge complaint of murder. This was state4 to him at about breakfast time in the morning. Immediately thereafter Police Patil Gumba had gone to lodge complaint. Van Singh Sarpanch and Tap Singh had gone alongwith Police Patil to lodge complaint. They returned at about 12 Noon after filing complaint ai Molgi". This complaint cannot be the same· which is referred to earlier because the earlier complaint according to P.W. 2 Surjabai was the one which was taken by Ratan Singh (P.W. I) to Molgi. The complaint referred to by P.W. 3 Bharatibai is complaint which was prepared at about noon by Police Patil Gumba (P.W. 5) and lodged by him at Molgi at about 12.00 noon.long before the arrival of Ratan Singh at the scene o.f occurrence. This complaint is also not forthcoming. Gumba (P.W. 5) who is former Police Patil denies .that Surjabai (P.W. 2) had told him to go and lodge complaint. He has stated that he had received information about the murder in the morning, he did n'ot go to lodge comp.Iain! as Detka (P.W. 9) was the Police Patil and that when Surjabai narrated before Police Patil Detka the particulars of the incident, he asked Police Patil Detka (P. W. 9). that he should go to lodge complaint. This happened according to him at about 2 P.M. on March 27, 1974. P.W, 9 Detka says that he went to the place of occurrence at about 1.30 P.M. on March 27, 1974 where the dead body was !yins and he stayed there.. awaiting the arrival of

Ratan Singh (P.W. 1) who reached that place by 5:CO P.M. and thereafter he and Ratan Singh went to Molgi police out post where the head constable prepared the occurrence report. He says that be reached Molgi at about sun-set time but the khabar report. (Exh. 36) prepared by the head constable at Molgi shows that the 'khabar' was givan to him at 21 hours i.e. 9.00 P.M. on March 27, 1974. Ratan Singh (P.W. 1) who is stated to have given that khabar says that he reached Molgi at about 8.00 or 8.30 P.M. and gave the information contained in the khabar report. The first information stated to have been recorded by the police, under section 154 of the Criminal Procedure Code is stated to be the one taken down at the Police Station at Ohadga~n (E~h. 10) at 2.15 A.M. on March 28, , 1974. close examination of the above evidence shows that accord-ing to Surjabai (P. W. 2) there was document prepared by Gumba (P.W. 5) in the morning of March 27, 1974 containing the infor• mation given by her which was later on taken by Ratan Singh (P:w. 1). Then according t<>" Bharatibai (P.W. 3) there was docu-ment which was prepared by Gumba at about 12.0.0 Noon which he took to 'Molgi and lodged it with the Molgi police out post. Accord-ing to P. W. 9 Police Patil Detka, the information was given at the police out post at about sun-set time i.e. at about 6.30 P.M. The khabar report itself shows that it was received at 9·.oo P.M. on March 27, 1974 and the first information is stated to have been recorded at 2.15 A.M. on March 28, J 974. In this case the prosecution have attempted in the course of the evidence to explain away the delay in giving the information to the police out post which was nearly 24 hours from the time at which the occurrence is stated to have taken place by stating that Surjabai (PW. 2) did not want such information to be lodged with the police until the. arrival of Ratan Singh which, according to the prosecution, took ,place at 5 P.M. on March 27, 1974. The attempt of the prose~ution to explain away the delay has failed in the instant case since we have several different versions about the lodging of the information with the police out post and the earlier versions of the crime said to have been given by Surjabai which were in writing appear to have been suppressed in ihis case. This extraordinary delay ih giving the first information to the police in the present case which, has not been properly explained cann,o( but be vjewed with suspician,

The motive for the crime is stated to be that the plot on which the deceased had grown watermelons was being used by accused No. 2 Ramji some years before the incident to grow onions and · that there was quarrel about 8 or 10 days prior to the incident between accused No. 2 and Ratan Singh (P.W. I). The land in question being part of the river bed did not belong to accused No. 2 and he was not cultivating there for about 2 or 3 years before the incident. The land was probably getting submerged during rainy season. Accused No. 2 could not, therefore, be considered as being in possession of that plot when the deceased commenced cultivation. There is also no evidence showing that accused No. 2 had raised any objection when watermelon seeds were actually planted. In the circumstances, the motive suggested does not appear to be strong enough for the four accused joining together to commit the murder of the deceased.While there could be no doubt about the homicidal character of the death of the deceased, the learned Sessions Judge who heard the evidence of Surjabai (P.W. 2) held that the details of the incident given by her were imaginary or improbable and, therefore, un-believable. Some of the inherent contradictions in her evidence are these : In her evidence she has stated that she was sitting outside the hut near place where she had kept fire (agiti) at about 9.00 P.M. and she saw from there all that took place inside the hut when her husband was assaulted by the accussed. She has even given the role played by each of them. She has stated that while accused Nos. 1, 3 and 4 hel.d the deceased, accused No. 2 assualted him repeatedly with the axe he had brought. The sketch of the scene of occurrence (Exh. P. 4) shows that the fire place was to the South of the hut but the hut had an opening towards the East only. She could not, therefore, have seen the actual assualt from the place. where she is stated to be sitting. It is also noteworthy that the only source of light at the time of the incident was the fire s~id to have been ignited by Surjabai (P.W. 2). It is difficult to believe t,hat slie could in that light identify the accused, the arms they were carrying and the clothes they were wearing about which she has tried to give detailed description in her evidence. Her answer that she had put more fuel in order to have more light so that she could identify the accused properly appears to be bit artificial. She, however, has admitted that it bad become dark even when they were taking food earlier. .It iS'also strange that she did not try to resist the attack on lter.husbarn;l. lt is furt)ler seen that in Exl!. IO, th~ first information,

[I 983j 3 s.c.ll.

it is stated that she had told Ratan Singh (P.W. I) that at the time . of the incident she was chit-chatting with her husband but in her -deposition she has stated that the deceased had fallen asleep at the time of the incident. The doctor (P.W. 6) has stated that the cause of the death was due to severe bleeding due to ·the cutting of the tight carotid artery, It is also in evidence that the blood of the deceased had been splashed all-round, but it is stated by Surjabai (P.W. 2) that no even single stain of blood was found on her clothes. Ordinarily on such an occasion wife whos,, husband is · murdered would come into close contact with the body of her husband and her clothes would become blood stained. In the instant case there was no means of avoiding such stains also as there was ·darkness all-round where the incident is stated to have taken place. The absence of blood stains on the clothes of Surjabai (P.W. 2) suggests that she could not have been present at the scene at the time of occurrence. The statement found in Exh. P. Ill and also in her deposition that she was hiding on hillock during that night out of fear is contradicted by the evidence of Bharatibai (P.W. 3) that Surjabai (P.W. 2\ had told her:that she was in the hut throughout till she returned home. We may also not here that according to Ratan Singh (P.W. I) the son of the deceased they had engaged about seven 'annual' servants to work on their fields and one of them was Bamanya (P.W. 8) who had gone to fetch him from Nalagavi villoge where he had gone to see his son who was studying in Ashram School.· None of the servants had been asked to stay at the hut alongwith the deceased but only Surjabai (P.W. 2) is stated to be present af the scene of occurrence. The distance between the village of Surjabai (P.W. 2) and the scene of occu.rrence' was about 1 l/2 miles according to the evidence of Ratan Singh (P.W. 1). If that was so, it is not known why Surjabai did not run to the village immediately after the incident took place, instead of running towards the hiJlock and returning to the village next morning.

There is no doubt that even where there is only sole eye witness of crime, conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence iu support of the testimony of solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or illwill is suggested. Now in tile insta(lt c!lse careful analysis of the evi\lepce relatin~ to th~

inordinate delay involved in the giving of the first information to the police and the other inherent inconsistencies in the evidence· of the sole eye witness i. e. Surjabai (P. W .2) shows that her evidence cannot be considered as sufficient to fiind the accused gui ty. The first information (Exh. P. JO) itself appears to be one prepared after some deliberation. The role attributed to Gumba (P.W.5) the former Police Patil in the prosecution exidence compels the Court to look for corroboration from the other prosecution evidence before accepting the evidence of Surjabai (P.W.2).The accused Nos. I to 3 were arrested on March 28, 1974. The axe and clothes recovered on March 28, I 974 itself on the basis of the statement of accused No. 2 and of accused No. 3 had no blood stains according to the report of the Assisstant Chemical Analyser to Government (Exh. 39). The house of accused No. 1. was not searched on that day even though there was no impediment for doing so. His house was searched on the next day when dhoti said to contain some blood stain was found with him. The delay in· the recovery of this dhoti was considered by the learned Sessions Judge as affecting the evidentiary value of the said recovery. Similarly ·the blood stains said to be on banian seized from the person of accused No. 4 when he was arrested on March 29, 1974 was conside-red by the Sessions Judge as not possessing any corroborative value again on account of the interval between the time of occurrence and the time of recovery. The learned Sessions Judge felt that the evidence of Surjabai could not be accepted without any further corroboration. The learned Sessions Judge also felt that the evidence of the other prosecution witnesses snch as Gumba (P.W.5), Police Patil Detka (P.W.9) and Ratan Singh (P. W. l) could not be safely relied on as furnishing corroboration to the statement of Surjabai (P.W.2) in view of the several circumstances narrated in his judg-ment. The evidence of motive also was found to be discrepant by the learned Sessions Judge. Accorcting"y he acquitted all the ·accused.

The High Court which was hearing an appeal against judgment of.acquittal has not bestowed due care on the principles governing its jurisdiction. While there is no doubt that .the jurisdiction of an appellate court is coextensive with that of the trial court, in .the case of an appeal against judgment of acquittal it cannot totally brush "'ide the appreciation of the evidence by the trial court. The reasons for reversing judgment of acquittal should be cogent and if two views are reasonably possible, the appellate court should be

slow in interfering with the judgment of the trial court, even· if it is possible for it to take different view after process of laborious reasoning. We do not find proper discussion in the judgment of the High Court about the various versions in the prosecution evidence about the giving of the first information to the police, which we have pointed out above, in their true perspective. The High Court has over-simplified this issue and bas observed : "Jn this case, bearing in mind the place where the incident occurred, we find no unreasonable delay in reporting the incident to the police out post• at Molgi and subsequently in giving the complaint at the Dhad:gaon Police Station''. It may be noted that the distance between Molgi and the,village of the deceased was hardly three miles but the 'khabar' reached the Molgi police out post, according to the prosecution, nearly 24 hours after the incident. The reason given by the prosecu-tion for this inordinate delay is hardly convincing. This important aspect of the case has been overlooked by the High Court. There is one other circumstance to which reference may be made here. The doctor (P.W.6) who had conducted the :post mortem examination of the body of the deceased gave evidence stating that the death of the deceased could not have taken place soon after the dinner as he did not find any food particles in the stomach or the small intestines of the deceased. He opined that by the time of the death of the deceased at least four hours must have passed after his ·taking food. There being nothing highly incongruous about this statement, the learned Sessions Judge had observed iu his judgment that the evidence of Surjabai (P.W. 2) that she had served food for the decea•ed at about 8.30 P.M. could not be accepted as probable as the fatal assault had taken place at about 9.00 P.M. But the High Court has severely criticised the ·evidence of this doctor observing that : "our impression is that he hardiy knows what he is talking about and what is extraordinary is that the less he knows the more assertive he is. No reliance what so ever can be placed on such evidence and no conclusion can be drawn either adverse or in favour of the prosecution from the opinion _evidence of such poorly qualified medical witness". This comment by the High Court on the evidence of· the doctor appears to be more severe than what it should have been particularly when his opinion that 'it was possible that the death in this particular case was instantaneous' is not seriously challenged. In the circumstances of this case, the scope for exaggeration on the part of the prosecution witnesses. involving innocent persons cannot also be ruled out. As we have poninted out earlier, the High Court has missed some

important discrepanCies in the prosecution case. Bearing in mind the ·well-settled principles governing case of this nature we feel that it would be unsafe to act upon the evidence of Surjabai (P.W.2) and convict the accused. In the circumstances, the High Court was in error in upsetting the verdict of acquittal recorded by the trial court. We, therefore, hold that the appeal of Ramji Surjya Padvi accused No. 2 (appellant No. I) should be allowed.

Having reached tbe· above conclusion, we foe! that ends of justice require that we should suo motu recall the order dismissing the appeal of Bhikji Surjya Padvi accused No. 4 (appellant No. 2) in this appeal and acquit him also. We accordingly review the order dated · August 18, 1980 of this Court dismissing his appeal and restore his appeal to the file. It may be mentioned here that the learned counsel for the State fairly conceded that if the appeal of accused No. 2 is to be allowed, accused No. 4 should also be released.In the result we allow this appeal, set aside the conviction of accused Nos. 2 and 4 (appellants Nos. I and 2) Ramj1 Surijya Padvi and Bhikji Surjya Padvi under section 302/34 of the Indian Penal Code and the sentences of imprisonment for life imposed on thein by the High Court and restore the judgmeQI of acquittal passed by the trial court. Accused No. 2· and accused No. 4, the appellants herein shall be released forthwith.

Appeal allowed.