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Shivaji Sahebrao Bobade & Anr. V. State Of Maharashtra

Case name:Shivaji Sahebrao Bobade & Anr. V. State Of Maharashtra
Case number:Criminal Appeal No. 26 of 1970.
Court: The Supreme Court of India  
Decided on:27/08/1973
Relevant Act/Sections:Code of Criminal Procedure (Act 5 of 1898)-Section 417-Appeal against acquittal-Power of the High Court to interfere-Norms for the exercise of the power.
    • On the ill-starred day, Hariba and Vilas set out to go to the weekly bazar at Bibi after taking their food at about 10 or 10-30 a.m. They went to P.W. 5’s office at Ghadgewadi and proceeded to Bibi where Hariba did some shopping visiting P. W. 6 a shopkeeper and Shiva Ram, a carpenter. Later both of them started on their way back finishing their chores. The way lay along a cart track from Bibi to Ghadgewadi. One Dada also had accompanied them.
    • While the three men were trekking back and were at some distance from Ghadgewadi the two accused turned up from behind and called out to Dada to stop. He obeyed and the other two went along. Thereupon the accused are alleged to have run and overtaken the deceased and P.W. 5 at the place known as Zamanacha Mala, Survey No. 8, Hariba, who was asked to stop, Was set upon by the two assailants. Accused No. 8 drew his knife and silenced P. W. 5 by threat of stabbing if he broke into raising alarm.
    • Soon after, the second accused dealt knife blows on the deceased on the head and eye-brow and accused No. 1 gave heavy strokes with a wire rope to which was attached a leaden ball described as a hunter by the witnesses. Hariba fell on the ground and the second accused kicked him as he lay. Dada was warned not to divulge and P.W. 5, similarly cautioned, was conducted by the assailants up to a distance.
    • It is significant that at the time of the attack the accused angrily asked the deceased whether he would still remain in the vasti (at Kadamwadi with Sita Ram). According to the prosecution, P.W. 7 Zumber was going by the same cart track from Ghadgewadi to his field for sowing and when he reached the spot was told by the accused to divert the cart and not to speak out. Dada left the place on being threatened and Vilas accompanied the accused, having been intimidated against going to Kadamwadi. A little later, one Balakrishna (P.W. 2) accompanied by Ramu Sakharam (P.W. 9) and others while his way from Ghadgewadi side to Bibi stumbled on the scene where Hariba was sinking.
    • One Anna, father of Zumber (P.W. 7) was, at about the same time, coming from Bibi side. ’Ibis person asked helpless Hariba what befell him and was told by the latter that Lala and Shivaya (the names are of the accused) had beaten him. Shortly after, he breathed his last. P.Ws. 2 and 9 were present then. P.W. 2 proceeded to Bibi and reported the death of Hariba to P.W. 15, Narayan, the police patil at Bibi, Ext. 8.
    • The report was recorded and was transmitted to the police, the First Information Report being Ext. 36. Several witnesses were examined and documents exhibited at the end of which the Sessions Court concluded : “In any case a reasonable doubt is cast to the case of the prosecution and the benefit thereof must be given to the accused. I,, therefore, hold that it is not proved that the accused committed the offence”. In his judgment, which adverts with apparent care to all the relevant circumstances but suffers from a few fatal flaws which we will refer to in due course, the trial judge negatived the veracity of the prosecution version, but on appeal by the State a Division Bench of the Bombay High Court, after elaborate consideration of the evidence and the grounds relied upon by the trial judge to discard the prosecution’s case, reversed the findings. The conviction that followed was visited with a sentence of imprisonment for life.

The two prisoners have challenged the reversal of their acquittal in this Court.

    • The evil of acquitting a guilty person lightheartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated ’persons’ and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually erodin the judicial protection of the guiltless. For all these reasons it is true to say’, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the ,guilty no less than from the conviction of the innocent. ..”-In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents.
    • The Court then went on to observing the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.
    • The Court was satisfied that P.W. 2 and P.W. 9 are credible enough to prove the dying declaration since P.W. 9 also has not suffered any material dent in his evidence as a result of cross-examination. The Court was conscious that undocumented dying declarations’ are easy to get up and being based on the fading recollection and unsure probity of ordinary persons with human frailities, cannot be safely trusted save when the general features and other dependable materials justify reliance. Even so the natural statement of Hariba about the cause of his death to the passersby proved by P.Ws. 2 and 9, read in the background of other circumstances of the case, overcomes the rule of prudent reluctance judicially adopted in evaluating oral dying declarations.
    • The discovery of incriminating materials pursuant to confessions made by the accused constitutes the third category of, evidence. Obviously, the confessions are inadmissible but- the discoveries are, provided they are pertinent to the guilt of the accused., So far as accused No. 2 is concerned, his statement resulted in the discovery of a knife (vide Panchnama, Ext. 13). of course, knives were discovered long ago and not now but this knife lay buried and was recovered by the .accused from a pit in the corner of a wall of his house. There was human blood on the blade of the knife, M.O. 5/11 according to the chemical analyst’s report. The second accused’s clothes also were picked up by him pursuant to his statement. He had worn a shirt and pants on the day of occurrence and P.W. 13, a neighbour deposes that the second accused had come to him at about 6 p.m. on the Monday when Hari died and had mentioned to him that since his own house was locked he might be permitted to keep his clothes in the witness’s house. Thereafter he left his clothes under am empty Khokha from where he himself took them out-when he later came in. the company of .the police. There are blood ’Stains on the clothes and it is found by, the chemical examiner that the blood on the pants are of the same blood group as that of the deceased. When the second accused was asked under sec. 342, Cr. P.C. about the export of the chemical examiner noticing blood stains on the shirt, M.O. 5/2 and of human blood on the blade of the knife, M.O. 511, he merely answered, “I do not know”.
    • The pants allegedly worn at the time of the attack by the second accused has stains of blood relatable to the. group of the deceased. This circumstance binds him to, the crime a little closer but it is unfortunate that no specific question about this circumstance has been put to him by the court. It is trite law, nevertheless fundamental that the prisoner’s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area many gravely’ imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and- prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration.
    • The High Court has relied on this evidence with which this Court agreed after all a hunter with a lead-ball is not something ordinarily found in fields or wells or in houses. The conclusion that emerges from these discoveries is that the apparel, of the second accused and the weapons recovered establish some nexus between the crime and the appellants.
    • The Court mentioned that by themselves they are inconclusive but in conjunction with other facts they may have efficacy. Some attempt was made to show that the many injuries found on the person of the deceased and the manner of their infliction as deposed to by the eye-witnesses do not tally. There is no doubt that substantially the wounds and the weapons and the manner of causation run congruous.
    • The Court mentioned that even if the case against the accused hangs on the evidence of a single eye-,witness it may be enough to sustain the, conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. The Court was persuaded that the PW 5 is a witness for truth but in view of the circumstances that he is interested, we would still want corroboration in this case to reassure ourselves. And that it had in this case.
    • The Court affirmed the finding of the High Court. Two men thus stand convicted of murder and have to suffer imprisonment for life because the punitive strategy of our Penal Code does not sufficiently reflect the modern trends in correctional treatment and personalised sentencing.
    • We confirm the conviction and sentence and dismiss the appeal. K. B. N. Appeal dismissed.

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