1. The accused Sakharam Manaji Vanjari was tried for the murder of Vithi, wife of Bhika Gangaram, and was acquitted by the Sessions Judge of Nasik. This is an by Balak Hum, Sessions Judge at Nasik. appeal by the Government of Bombay under Section 41.7 against the acquittal.
2. Vithi was a young woman aged 18 who lived with her husband Bhika Gangaram at the village of Wadgaon, a few miles from Deolali. Her husband worked as a cartman at Deolali. On the 8th of September, the husband says, Vithi came in the morning to Deolali and left him his food and fodder for his bullocks and a message that she would return in the evening with his dinner. After his work he returned to Deolali Station at 3 P. M. expecting her to arrive. She did not come. He went home and found that she had not returned home after her visit to Deolali that morning. He searched for her that night and next morning without success and at 4 P. M. on the 9th learnt that her corpse had been found in the bed of a nalla between Wadgaon and Nanegaon on the way from Deolali. He went there with the Wadgaon Patil who sent for the Nanegaon Patil as the place was within the boundary of the village of Nanegaon. He then went back to Wadgaon in the evening and learnt from the women folk, that Yama had a clue to the murder. He found Yama at his house at 4 P. M. and after much persuasion Yama told him that Bhika Raoji had said that accused and Pandu had committed the murder. He looked for Bhika Raoji, but could not find him and returned to the scene of the murder at 11 P. M. By that time the Nanegaon Patil had arrived and later about 2 A. M. the Sub-Inspector came there. The Sub-Inspector made an inquest in the morning of the 10th. He did not take the statement of the husband till the afternoon after he had gone on to Wadgaon. He did not find Yama, Bhika, Pandu and the accused till the 11th. On that evening he arrested the accused.
3. Now there is no doubt that Vithi was murdered in the Nalla bed. Her throat was cut. There was much blood on the ground near the corpse and there were other marks of violence. Broken pieces of bangles and of a necklace were lying 9 or 11 paces from the corpse and the body had been dragged from there to the place where it was found. The motive for the murder was not robbery, for the woman's ornaments had not been touched. The Kasota, however, had been loosened and there can be no doubt that the unfortunate woman had been ravished and murdered.
4. Bhika Raoji is the most important witness in the case. His field is 500 paces from the nalla bed where the corpse was lying. He says that on the morning of the 8th while ploughing his field he saw four men from Wadgaon, the accused, Pandu, Narayan and Rainji, carrying head-loads of grass pass by the path alongside his field, cross the nalla*and sit down to rest on a hillock which is 100 paces from the further bank of the nalla. He saw a woman coming from towards Nanegaon. He says that she passed the four men, halted, looked back and proceeded on her way towards the stream. He says that Narayan and Rainji got up and went on their way towards Nanegaon. The accused, he says, ran towards the nalla and like the woman went out of sight in the nalla bed. Pandu then followed and stood on the far bank of the nalla. He says that Pandu then returned, picked up his load and went on towards Nanegaon ; and after him the accused came out of the nalla bed and did the same. But as the woman did not appear, he felt suspicious, went to the nalla bed and saw that she had been murdered there. He was terrified and went and told Yama and Ramchandra who were in their field beyond his that a murder had been committed in the nalla bed by Pandu and the accused Sakharam. All these three went away without going to the scene of the crime or giving the alarm. That is not surprising, for the average villager has little sense of civic duty and is much afraid of being mixed up in a police case.
5. There can be no doubt, however, that the main facts of Bhika Raoji's story are true. Narayan was called as a witness and he says that he, Ramji, Pandu and the accused rested with their head-loads on a hillock, that Vithi passed them, that he spoke to her and that as she went on to cross the river bed, he and Rainji left. The Sessions Judge has believed this witness. His evidence establishes that the accused and Pandu were left near Vithi at the place where she was murdered and at the time of her murder.
6. Now Pandu admits that he was at the hillock with Narayan, Ramji and the accused, that Vithi passed them, that Narayan and Ramji went on and, he says :-'Then Sakharam the accused followed her and obstructed her near the bank of the dry stream. She shouted and I went towards her. When I reached the bank of the river, I saw that Vithi was lying on her side in the dry bed of the stream. Sakharam was standing and was holding her. He put one hand on her neck and the other on her thigh. Accused was stopping at the time. I remonstrated saying she had done him no harm. Thereupon he took out a knife from his pocket. I saw the blade. He told me if I shouted or made noise, he would kill me. When this was going on, I saw Vithi's face. She was struggling to get up. I then went away after Narayan and Ramji as the accused's threat frightened me.'
7. But though he says he went away, because he was frightened, Pandu admits that he went on with the accused and joined Narayan and Ramji at the Darna river on their way where they bathed He also went on with the accused to Deolali Station and he was seen with the accused in a hut near Deolali Station at 3 P. M. that day by Vithi's husband who was there waiting for his wife. There can be no doubt that Pandu was an accomplice in the murder. He is a' distant relation of Bhika Raoji and the Sessions Judge thinks that Bhika Raoji is trying to shield Pandu when he says that Pandu did nothing but look on from the bank. We agree. We also agree with the Sessions Judge that if the Sub-Inspector had taken the trouble to question the husband as soon as he arrived at the scene of offence, and to secure the evidence of Bhika Raoji earlier, he would probably have told the whole truth. But if Bhika Raoji is trying to screen Pandu, does it follow that his evidence against the accused was false We think not. Bhika Raoji first said to Yama and Ramchandra that Pandu and Sakharam committed the murder. That was before he had time to think of screening his relation and that was probably the truth. The Sessions Judge has acquitted the accused, because he thinks that Pandu may have committed the murder without the assistance of Sakharam, and that Bhika Raoji may have interchanged the parts played by Pandu and Sakharam. But Pandu is only a boy of 18 and we think it incredible that he committed the murder single-handed. Again, the theory that there was one man on the bank who was an innocent onlooker is one that we cannot accept. It was only invented by Bhika Raoji in order to screen Pandu. Both Pandu and the accused were left with Vithi. Both were together for the rest of the day at any rate up to 3 P. M. We feel no doubt that the outrage was committed by both of them. In spite of the delay in securing their evidence we feel sure that Yama and Bhika Raoji are not tutored witnesses. Yama says he told no one until questioned by the husband. But the husband says he had been told that Yama had a clue. This discrepancy would not be present if the evidence was tutored. Yama probably did say something to his women folk and that is how news generally spreads in villages. Yama admits that he first told the husband he knew nothing so anxious was he to keep out of the case. Yama and Ramchandra, if they were false witnesses, would certainly have said that they had seen accused, Pandu, Narayan and Raoji pass by their field. They did not see them, because their field is further away than Bhika Raoji's and because they were at that time sitting down and having their breakfast. There were no bloodstains on the accused; but he bathed in the Darna river soon after the murder and if there were probably two murderers, the woman would have been so overpowered that it would have been possible for the murderers to avoid bloodstains. The accused has called two witnesses who say that he was in Deolali on that morning. This sort of evidence is easily fabricated and we do not believe it.
8. There is clear evidence that the accused was present at the time of the murder coupled with the evidence of Pandu and Bhika Raoji. We have no doubt that the accused and Pandn were the murderers.
9. Mr. Patwardhan has suggested that we should not interfere even if we disagree with the Sessions Judge. For his conclusions are not unreasonable and perverse. But the cases of Queen-Empress v. Bibhuti Bhusan Bit I.L.R(1890) Cal. 485 and Queen-Empress v. Karigowda I.L.R(1894) 19 Bom. 51 are a sufficient answer to this argument. The Code makes no distinction between an appeal against conviction and an appeal against acquittal. In an appeal against acquittal if this Court thinks the lower Court has taken an erroneous view of the evidence and should have convicted it has no jurisdiction to refuse to convict. The power of appeal under Section 417 is one that should be exercised sparingly by Government, but the discretion to exercise that power appertains to Government and is not subject to control by this Court.
10. We are satisfied with the guilt of the accused. We reverse the order of acquittal and convict the accused Sakharam Manaji of the offence of murder under Section 302 of the Indian Penal Code. But as he had been acquitted by the lower Court we refrain from inflicting the capital sentence. We sentence the accused Sakharam Manaji to transportation for life.