1. This is a confirmation case in respect of the sentence of death passed by the Sessions Judge at Satara against accused No. 2 before him. The same has come up for hearing along with the appeal filed by original accused Nos. 1 and 2 from the conviction and sentence imposed upon them by the trial Judge. It may be mentioned that the trial Judge had acquitted the 3rd accused in the said case.
2. The facts necessary for the purpose of disposing of the matter before us are that accused Nos. 1 and 2 are brothers, and they had a third brother named Shankar who was married to the deceased Housabai. Shankar died some time in the year 1952, without issue and, after his death, Housabai adopted Varkari Sampraday and was residing in a Math at Pandharpur conducted by one Madan Maharaj. The deceased Madhav Buwa was the Secretary of the Math and witness Macchindra was also one of its inmates. Housabai used to reside in the premises of the Math after the death of her husband, but she claimed partition and separate possession of her share in the joint family property by filing Civil Suit No: 120 of 1960 against the two accused in the appropriate Court, and having succeeded in that suit, obtained possession of her share of the lands on the 23rd of April 1968. The enforcement by Housabai of her rights of partition and separate possession of her share of the family lands appears, naturally, to have embittered the relations between her and her brothers-in-law accused Nos. 1 and 2, and she apprehended some trouble from them at the time of undertaking sowing operations in the field of which she had been given possession pursuant to the decree of the Court. She accordingly, sought police protection by making two applications which are Exhibits 42 and 43 in the present case and, with the assistance of a constable, she went through the sowing operations without any untoward incident occurring. The time for harvesting having arrived, Housabai left the Math some time in the beginning of December 1968, accompanied by Madhav Buwa (since deceased) and witness Macchindra, in order to go to her lands at Nandgaon. She did not put up at the house of her brothers-in-law accused Nos. 1 and 2 from whom she presumably apprehended trouble, but put up at the house of witness Ramchandra Gadhave in the village of Targaon which is separated from the village of Nandgaon only by the river Krishna. From there, Housabai, together with Macchindra and Madhav Buwa, used to go to Housabai's field for the purpose of harvesting operations, and it may be stated that Housabai had actually introduced her two companions to accused Nos. 1 and 2 on the very first day, and had also spoken to accused Nos. 1 and 2 who had given her some jowar, flour and fuel which she needed. The work of removing the crop went on and was still incomplete after the expiration of a period of 13 days during which Housabai, Madhav Buwa and Macchindra continued to stay at the house of Ramchandra Gadhave. As, however, they had over-stayed their hospitality, they had thereafter to shift from the house of the said Ramchandra, and they then put up in the house of one Nivrutti Bartakke which was also situated in the village of Targaon. They had put up at the said Nivrutti only for a couple of days when the incident in the present case occurred on the 19th of December 1968.
3. On that day, Housabai, Madhav Buwa and Macchindra had gone to the field of Housabai at about 8 a.m., as usual, for removing the crop and had worked in the field for the whole day. Accused Nos. 1 and 2, accompanied by accused No. 3 who was their distant uncle, had come into the neighbouring field belonging to accused Nos. 1 and 2 at about 4 p.m. that day and had started cutting the wood of a Babhul tree in their field. Accused No. 1 had for that purpose an iron bar, accused No. 2 had in his hand an axe and accused No. 3 had with him a saw. Housabai and her companions finished the day's work in the field at about 5-30 p.m. and began to collect their belongings in order to leave the field. It is the prosecution case that, seeing this, accused No. 1 left his field with the iron bar in his hand and went ahead. Shortly thereafter Housabai. Madhu Buwa and Machhindra left the field and were walking on a foottrack by the side of a canal in single file, Madhu Buwa being first, followed by Macchindra, followed by Housabai. According to the prosecution, accused Nos. 2 and 3 also left the field and followed fairly close behind Housabai and actually spoke to her as they went along. It is the prosecution case that when Housabai and her companions came to a place near the engine house of one Ghorpade, accused No. 1 suddenly darted out from the bed of the canal and gave a blow with the iron bar which was in his hand on the neck of Madhav Buwa, whereupon Madhav Buwa fell down instantaneously. Macchindra who was following Madhav Buwa at a distance of about 10 or 11 paces was taken aback and on looking behind towards Housabai who was following him at a distance of about 15 paces, he saw that accused No. 2 gave an axe-blow on the back of her head, whereupon Housabai also fell down. According to the prosecution accused No. 3 then exhorted accused Nos. 1 and 2 not to allow Macchindra to escape, but Macchindra threw away the bag which was in his hand and ran for his life into the adjoining field. Seeing him running away, accused No. 2 is alleged to have thrown the axe towards Macchindra, with the result that the handle of the axe hit Macchindra on his right thigh, and this was followed up by accused No. 2 throwing a stone at Macchindra which hit him on the back side of his waist. The prosecution story is that Macchindra, though injured, managed to run away and he ultimately went to a temple at a village named Borban of which witness Pandurang Narayan was the pujari to whom he narrated the incident. The prosecution story is that Pandurang, however, refused to give him shelter for the night and Macchindra, therefore, proceeded to the adjoining village of Targaon where he went to the house of Ramchandra Gadhave with whom they had previously put up and narrated the incident to him. Ramchandra, however, also declined to give him shelter for the night and Macchindra, therefore, proceeded to the house of witness Nivrutti Bartakke in Targaon itself with whom they had been putting up since a couple of days. It is the case of the prosecution that Macchindra narrated the incident to Nivrutti Bartakke also, but Nivrutti advised him not to stay there and accompanied him up to Targaon Railway Station from where, after various intermediate efforts to which it is unnecessary to refer, Macchindra ultimately succeeded in proceeding by a State Transport bus to Satara which he reached at about 9 a.m. the next morning. There he contacted one Shivaji More who was known to him and narrated the incident to him also. Accompanied by the said Shivaji, Macchindra proceeded to the house of the Mamlatdar who, however, was out and on being directed by his peon to report the matter to the Police Station at Borgaon, he ultimately went to Borgaon which he reached at about 3 p.m., and had his statement recorded by the Police Sub-Inspector at the Police Station at that place. Investigation thereafter started. Macchindra was treated for his injuries at the dispensary at Satara and on the next day. he accompanied the police party to Nandgaon which they reached at about 12 noon. Accused No. 3 was found there and he and accused No. 1 were arrested on the same day, but it is the case of the prosecution that accused No. 2 was not to be found at his house and was arrested only on the 28th of December 1968. The dead bodies of Madhav Buwa and Housabai were recovered from the canal and were found to have several injuries upon them, and post-mortem examination was duly performed on their dead bodies. After the usual proceedings, the three accused persons were committed to stand their trial before the Court of the Sessions Judge at Satara where accused No. 1 was charged under Section 302 of the Indian Penal Code with the substantive offence of the murder of Madhav Buwa, accused No. 2 was charged under the same section with the substantive offence of the murder of Housabai, and alternatively, all the three accused were charged with the murder of Madhav Buwa as well as Housabai under Section 302 read with Section 34 of the Indian Penal Code. Accused No. 2 was also charged under Sections 323 and 506 of the Indian Penal Code with having voluntarily caused hurt as well as criminal intimidation to Macchindra, and accused No. 3 was further charged under Section 109 read with Section 302 of the Indian Penal Code with having abetted the commission of the offences of the murders of Madhav Buwa and Housabai by accused Nos. 1 and 2. The three accused were, in due course, tried by the Sessions Judge who by his judgment dated the 30th of August 1969 acquitted accused No. 3, but convicted accused Nos. 1 and 2, inter alia, under Section 302 read with Section 34 of the Indian Penal Code in respect of the murder of Housabai as well as of Madhav Buwa.
4. The prosecution evidence consists of the following:--
1. The evidence of eye-witness Macchindra, which the prosecution states is corroborated by the First Information Report (Exhibit 7).
2. Corroborative evidence in the form of.
(a) medical evidence;
(b) the oral evidence of Pujari Pandurang;
(c) the evidence of Ramchandra Gadhave;
(d) the evidence of Nivrutti Bartakke;
(e) the finding of the iron bar from the house of accused Nos. 1 and 2 who, it may be stated, lived together, that iron bar being found, on chemical analysis, to be stained with human blood;
(f) the statement of accused No. 1 and the production by him of an axe from a dung-pit near the house of accused Nos. 1 and 2 which, on chemical analysis, has been found to be blood-stained.
3. Evidence in regard to the alleged motive of the crime.
The above evidence is relied upon by the prosecution against both accused No. 1 as well as accused No. 2, but in addition to the same, the prosecution relies on one more piece of evidence as against accused No. 2 and that is, the evidence in regard to his conduct subsequent to the alleged offence in absconding for a period of one week.
5. Before I proceed to deal with the above evidence, I may dispose of one submission which was made by Mr. Jethmalani on behalf of the accused, and that was, that the Court should be slow to convict on the testimony of a single witness. Reference may be made in this connection to the decision of the Supreme Court in the case of Vadivelu v. State of Madras, : 1957CriLJ1000 in which an identical submission was advanced before the Supreme Court as being a rule of prudence. After referring to a decision of the Privy Council in an earlier case, the Supreme Court laid down (at p. 533 of SCJ) = (at p. 618 of AIR) that as a general rule, a Court can and may act on the testimony of a single witness though uncorroborated, that unless corroboration was insisted upon by statute the Court should not insist on corroboration except in cases where the nature of the testimony of the single witness itself required the same as a rule of prudence, as for example, in the case of a child witness or a witness in a position analogous to that of an accomplice, and that whether corroboration of the testimony, of a single witness is or is not necessary must depend upon facts and circumstances of each case and much would depend upon the judicial discretion of the Judge concerned. The Supreme Court then proceeded (at p. 534 of SCJ) = (at p. 619 of AIR) to categorize witnesses into three classes, viz., (1) wholly reliable; (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. It then laid down that the question of corroboration arises only in regard to the third category in which the Court was called upon to be circumspect. It is in the light of these principles laid down by the highest Court that I will now proceed to discuss the evidence of Macchindra in the present case.
6. Macchindra has deposed that he hailed originally from a village in Osmanabad district and that since about 2 1/2 years prior to his giving evidence in Court he had been residing permanently in the Math at Pandharpur of which Madan Maharaj is the head. He has then deposed to the fact that Madhav Buwa and Housabai were also residing in the Math and to the respective duties performed by them to which it is unnecessary to refer. Macchindra then deposed that Housabai had told him that there was litigation about her landed property between her and her brothers-in-law, and she had succeeded in the litigation and obtained possession of her lands. She had further told him that she had sought police protection at the time of undertaking sowing operations on her lands. Macchindra has then proceeded to state in the course of his evidence that he and Madhav Buwa had accompanied Housabai who went to her lands at Nandgaon for the purpose of harvesting the crop that had grown upon it, and that they had put up at the house of witness Ramchandra Gadnave for 13 days, and had then moved to the house of witness Nivrutti Bartakke where they were required to live only for a day or two more for completing the harvesting work. Macchindra has then proceeded to the actual incident which occurred on the evening of the 19th of December 1968 in much the same terms in which I have set out the prosecution case at the beginning of this judgment. There are, no doubt, some contradictions which have been brought out in the evidence of the said Macchindra, and I must proceed to deal with them. In the course of his evidence in the trial Court Macchindra stated that accused No. 3 had twice incited accused Nos. 1 and 2 not to permit Macchindra to run away, but no such statement appears in the First Information Report (Exhibit 7) which Macchindra made on the 20th of December 1968 at Borgaon. Whilst I am not prepared to say that this is a major contradiction which should lead the Court to discredit the testimony of Macchindra altogether, it is certainly a contradiction which might well be in the nature of an improvement made by him in the trial Court and should, therefore, make the Court look for corroboration of the testimony of Macchindra. It is a sort of contradiction which would bring the case within the third category laid down by the Supreme Court in Vadivelu's case, : 1957CriLJ1000 viz., of a witness who is neither wholly reliable nor wholly unreliable, and would make the Court circumspect and look for corroboration to the evidence of such witness. (His Lordship further considered the other alleged contradictions and held them to be minor and not material).
7. There are several other discrepancies on account of which Mr. Jethmalani has attacked the veracity of Macchindra, and I must proceed to deal with the same. Mr. Jethmalani has contended that Macchindra's description of the incident is contrary to the medical evidence and that we should, therefore, take the view that he has fabricated the story after consultation with Shivaji at Satara, having had 24 hours' time within which to do so. As I will point out when I deal with the medical evidence, in my opinion, there is nothing in that evidence which would discredit the testimony of Macchindra, On the other hand, I take the view that it corroborates his evidence in the trial Court The next point which was sought to be made by Mr. Jethmalani was that the First Information Report of Macchindra starts with what he has characterised as a proved falsehood viz., that Ramchandra had asked Housabai and her companion to leave his house because of threats given to him by her brothers-in-law, a fact which Macchindra himself has not, in terms, deposed to in the course of his evidence. If one turns to the evidence of Ramchandra, he has, however, stated that he had asked them to look for some other house for. their stay, as they stayed much longer than expected. Merely because Ramchandra has not, in terms, referred to threats by the brother-in-law of Housabai it cannot be inferred that no such threats must have been given to him. Ramchandra has not been asked in cross-examination whether any threats had been given to him by her brother-in-law. If he had been so asked and had denied the same, there might have been a strong foundation for the comment which Mr. Jethmalani now seeks to make against Macchindra. It is true that the onus of proving guilt rests, throughout the trial, on the prosecution and never shifts on to the shoulders of the accused, but if the accused wants to rely on a particular fact for discrediting a prosecution witness, that fact must be adequately brought out in the cross-examination of the witnesses for the prosecution. Without risking the asking of that question to Ramchandra in cross-examination, Mr. Jethmalani cannot be heard to say that the mere fact that Ramchandra has not referred to any such threat shows that Macchindra is not an honest witness. Mr. Jethmalani has also commented on the fact that, according to him, Macchindra has tried to increase the distance from the site of the offence to the temple at Borban by stating that it would require half-an hour to run that distance, whereas the distance is only about a mile, as the Police Sub-Inspector has stated in his evidence. It must not, however, be overlooked that the Police Sub-Inspector has stated that that is the distance 'by a short cut', whereas there is nothing to show that Ramchandra went by that short cut. In fact, being a stranger to the village, he might very well have gone by a longer way than was really necessary, and he might also have done so in order to take a route which gave him the best cover from his pursuers. Mr. Jethmalani has also commented on the slight difference in regard to the incident itself as given in the First Information Report, and as given by Macchindra in the trial Court. I am afraid, however, there is no substance whatsoever in the distinction which he sought to draw, either in regard to the manner in which they were all walking when the incident occurred, or in regard to the reaction of Macchindra and Housabai when they saw Madhav Buwa being hit on the head by accused No. 1.
8. There is, however, one point urged by Mr. Jethmalani which needs consideration and that is that whilst Macchindra claims to have given the names of his assailants viz., the three accused, to all the three witnesses whom he met shortly thereafter viz., Pujari Pandurang, Ramchandra as well as Nivrutti, none of those witnesses bears him out as far as the actual giving of names of the assailants is concerned. In this connection it must, however, be pointed that the said three witnesses all state that Macchindra had told them that the assailants were the brothers-in-law of Housabai. Mr. Jethmalani has contended that it is unnatural that the said witnesses should not ask for the actual names of the assailants from Macchindra, but I fail to see any unnaturalness in the same. Housabai's husband had only two full brothers and if any of the said witnesses knew their names, they may not ask for the names. If on the other hand, they did not know the brothers-in-law of Housabai, or their names, they might not be interested in knowing their names, so long as Macchindra had told them who the assailants were by describing them as the brothers-in-law of Housabai. I also do not accept the contention of Mr. Jethmalani that since the actual names of the assailants were not given by Macchindra to Pandurang, Ramchandra, or Nivrutti their evidence could not be said to be corroborative of the evidence of Macchindra.
9. It was next contended by Mr. Jethmalani that to none of the said three witnesses viz., Pandurang, Ramchandra or Nivrutti, did Machhindra describe the assault on himself or the injuries suffered by him, though he claimed to have described the whole Incident.
(His Lordship examined the contention and rejected it. . His Lordship then continued).
The next comment which Mr. Jethmalani sought to make was that there were three independent witnesses who had not been called, though they were present in Court viz., Shridhar Malvankar, the Police Patil of Targaon, and the Mamlatdar's peon at Satara. but there is no substance whatsoever in that contention of Mr. Jethmalani for the simple reason that none of these witnesses could be said to have been witnesses whose presence was necessary in the witness-box for the unfolding of the narrative on which the prosecution case was based. None of them claimed to have seen the incident at all, or to have had anything to do with it and, under those circumstances, no adverse inference can possibly be drawn by the Court from the fact that these witnesses have not been called. (Further examining the contention, His Lordship proceeded.)
Mr. Jethmalani next contended that the witnesses viz. Macchindra, Pandurang, Ramchandra and Nivrutti are all persons belonging to a spiritual brotherhood being all Varkaris. and that spiritual relationship like natural relationship makes them partisan witnesses. That contention has only to be stated to be rejected, for merely because persons may owe loyalty or respect to the same religious institution cannot make them partisan witnesses. In this connection judicial notice may be taken of the fact that there are lakhs of Varkaris in this country and it would be a curious situation indeed, if in any incident in which they are involved or with which they are connected, they should be dubbed partisan witnesses merely on that account. The last criticism of Mr. Jethmalani in regard to the evidence of Macchindra was that his version of the incident is inherently improbable as there was no reason why of all places the first accused should be hiding in a canal, but I am afraid there is no substance whatsoever in that contention of Mr. Jethmalani. The first accused, if he intended to surprise Housabai and her companions, had to hide somewhere, and he may very well have found the hump of the canal to be a safe hiding place from which to ambush them.
10. Having given anxious consideration to the various points raised by Mr. Jethmalani in regard to the credibility of Macchindra on whose testimony the decision of this case largely depends, I have come to the conclusion that he is a witness of truth and that none of the contradictions pointed out or criticism levelled by Mr. Jethmalani are such as to warrant my discarding his testimony altogether. As already stated by me, in view however, of the fact that he has introduced in his evidence in the trial Court the alleged incitement by accused No. 3 which does not find place in his First Information Report (Exhibit 7), in my opinion, it is necessary that the Court should be circumspect and should look for corroboration of his testimony.
11-12. There is ample corroborative evidence in this case. Turning, first and foremost, to the medical evidence which, Mr. Jethmalani has stated, contradicts Macchindra's evidence, I cannot help feeling that, far from contradicting the same, it substantially corroborates the testimony of Macchindra. (After considering the medical evidence. His Lordship proceeded). That finishes with the medical evidence in the case and disposes of the contention of Mr. Jethmalani in regard to the same in so far as, in my opinion, far from contradicting the evidence of Macchindra. it corroborates that evidence.
13. I must now turn to the corroborative evidence afforded by the testimony of Pujari Pandurang, Ramchandra Gadhave and Nivrutti Bartakke.
14. Before, however, I deal with their evidence itself, I must consider the legal objection which was raised by Mr. Jethmalani in regard to the admissibility of the evidence of Ramchandra Gadhave and Nivrutti Bartakke. It was the contention of Mr. Jethmalani that the evidence of these two witnesses cannot be said to be admissible under Section 157 of the Evidence Act, because it is intended to be evidence of former statements made by Macchindra which, the prosecution claims, corroborates his testimony in the trial Court, and such former statements would be admissible under Section 157 only if they were made 'at or about the time when the fact took place' to which they relate. Mr. Jethmalani has further submitted that the word 'at' in Section 157 connote statements which were part of the res gestae, i. e., the event or the transaction itself, whereas the words 'or about the time when the fact took place' connote statements made very soon after the transaction which constitutes the res gestae. Mr. Jethmalani has therefore, contended that whilst the statements alleged to have been made by Macchindra to Pujari Pandurang might be admissible as having been made 'about the time when the fact took place', the alleged repetition of these statements by Macchindra subsequently to Ramchandra Gadhave and Nivrutti cannot be said to have been made 'about the time when the fact took place' so as to fall within the terms of Section 157, and the evidence of the said two witnesses in regard to the same is, therefore, not admissible. The objection raised by Mr. Jethmalani has to be dealt with in the light of the law on the point as laid down by the Supreme Court in the case of Rameshwar Kalyan Singh v. State of Rajasthan, : 1952CriLJ547 . The statement in question in that case was made by Mt. Purni to her mother about four hours after the incident had occurred, the reason for the delay being that her mother was not at home when she went there, and that statement was sought to be admitted in evidence for the particular purpose of corroboration under Section 157 of the Evidence Act. In regard to the question whether the statement having been made four hours after the incident, fulfilled the condition laid down by Section 157 viz. as having been made at or about the time of the incident, the Supreme Court observed as follows (paragraph 29):--
'The question is whether this delay fulfils the 'at or about' condition. In my opinion, here also there can be no hard and fast rule. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction.'
The Supreme Court then proceeded to hold that, having regard to the facts of that case, the statement did fall within the ambit of Section 157 of the Evidence Act and was rightly admitted in evidence. Applying the test laid down by the Supreme Court in Rameshwar's case to the facts of the present case, the question that I must proceed to consider is whether the statements alleged to have been made by Machhindra to Ramchandra Gadhave and Nivrutti Bartakke were made as early as could reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction. Machhindra was stranger to the locality and after haying been refused shelter in the temple, it would be natural for a person placed in the situation in which he was, to run to the houses of people with whom he and his two companions had been putting up in Targaon. He could not really have gone to them earlier than he actually did. His going first to the temple is explicable, because he probably thought that the accused person might find him out and do harm to him if he went to the place of Ramchandra or Nivrutti where he had been putting up, but would not expect to find him at the temple, or in any event may not dare to enter the temple and inflict injuries upon him in the presence of Pujari. Having been refused shelter in the temple, he had no alternative but to go to the only two persons who were known to him in Targaon. Having regard to these facts, in my opinion, the statements which he made to Ramchandra Gadhave and Nivrutti were made as early as might be expected, and there is not the least doubt that there was no opportunity for concoction in the interregnum between his running away from the site of the incident and his narrating the incident to the said two persons. I, therefore, overrule Mr. Jethmalani's objection to the admissibility of the statements of Macchindra which were deposed to by Ramchandra and Nivrutti and hold that the same are admissible as corroborative evidence under Section 157 of the Evidence Act. I will now turn to the corroborative evidence of Pandurang, Ramchandra and Nivrutti. 15-17. (His Lordship considered the evidence of Pujari Pandurang, Ramchandra and Nivrutti Bartakke and held that it substantially corroborated the evidence of Macchindra. His Lordship then continued.)
18. Mr. Jethmalani sought to contend that the fact that the police had chosen to record the statements of Pandurang and Nivrutti under Section 164 of the Code of Criminal Procedure shows that the police thought that these three witnesses were all unreliable. In support of that contention, he has relied upon the provisions of Section 155(1) of the Evidence Act which lay down that the credit of a witness may be impeached by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit. I am afraid that section has no application at all to the present case, for there is no question of anybody having gone into the witness-box to depose that these three witnesses, or any of them, were in his opinion unworthy of credit. If a witness goes into the box and makes such a statement there would be two safeguards: (1) the statement would be on oath and (2) it could be tested by cross-examination. In my opinion, to draw such an inference against the credibility of a witness without anybody going into the witness-box in the manner contemplated by Section 155(1) of the Evidence Act would not be legitimate. It would be a proposition which in some conceivable cases might be dangerous to accused persons themselves. Opinion evidence is, as a general rule, not admissible and Section 155(1) is exception to that rule. Since the matter does not fall within the terms of Section 155(1), or any of the other sections relating to opinion evidence, in my opinion, such an inference would not he legitimate or permissible. I must, therefore, reject this contention of Mr. Jethmalani also.
19. The next piece of corroborative evidence which has been relied upon by the prosecution is the recovery of the iron bar from the house of accused Nos. 1 and 2 on a search of that house, which iron bar has been found, on chemical analysis, to be stained with human blood. I have no hesitation in rejecting Mr. Jethmalani's contention that if the iron bar was struck on the nape of the neck, there would be no blood on it, in view of my finding on the evidence that the actual impact was at a place slightly higher than the nape of the neck, and in view of the fact that the base of the skull of Madhav Buwa had been found to be fractured. The blood that is found on the iron bar is human blood, and, therefore, though the iron bar may be regarded as an agricultural implement which the accused could be expected to possess for innocent use, the finding of human blood on it changes the entire completion and lends considerable corroborative value to the evidence in support of prosecution case. It is true that discovery evidence, by itself, is subsidiary and cannot sustain a conviction, but that is not the position in the present case in which there is plenty of other evidence to sustain the prosecution case. Both the panchas to the recovery of the iron bar have turned hostile, but it appears to be fairly clear that they have been won over by the defence, and I hold that the iron bar was recovered in the manner alleged by the prosecution.
20. A further piece of corroborative evidence that is relied upon by the prosecution is the statement alleged to have been made by accused No. 1, and the production by him of an axe from a dung-pit near the house of accused Nos. 1 and 2 which was found to be stained with blood, though it could not be ascertained whether that blood was human blood. The fact that the blood on the axe was not shown to be human blood, coupled with the fact that the axe was even according to the prosecution not used by accused No. 1, deprive this evidence of the probative value it might otherwise have had. The statement which the accused is alleged to have made (Exhibit 28) contains a portion which was clearly inadmissible in evidence under Section 27 of the Evidence Act, the admissible portion being only, 'I produce that axe which is buried in dung-pit near my house'. That statement does not even say that it was accused No. 1 who had buried the axe at the place from where it was recovered. The admissible portion of the statement is therefore, of very little probative value. The panchas to the making of that statement and the recovery of the axe who were the same as in regard to the recovery of the iron bar have both turned hostile, but even if the admissible portion of the statement (Exhibit 28) is taken to have been made by the first accused, for the reasons stated above, neither the said statement nor the recovery of the axe is of any appreciable value as evidence corroborative of the prosecution case. The only other corroborative evidence on which the prosecution has relied is the evidence in regard to motive. The prosecution relies, in that connection, on Exhibits 42 and 43 which are applications made by the deceased Housabai for Police protection at the time when she had undertaken sowing operations on this very land. In those applications she had expressed apprehension of trouble from her brothers-in-law and had mentioned threats having been given to her by them. Mr. Jethmalani has contended that the said two documents are inadmissible in evidence as they do not fall either under Section 32(1) of the Evidence Act, or under Section 8 of that Act. Reference may be made in that connection to a decision of a Division Bench of this Court in the case of Allijan Munshi v. The State, 61 Bom LR 1620 = AIR 1960 Bom 290. In that case also, what was sought to be admitted in evidence was a complaint in writing made by the deceased nearly two months prior to her death expressing apprehension of death at the hands of the accused. The view expressed by the Division Bench in the said case was (at pp. 1623-1624) (of Bom LR) = (at p. 291 of AIR) that, whilst the said complaint 'may be admissible' under Section 32(1) of the Evidence Act, the same was in any event admissible under Section 8 of that Act as constituting a motive or preparation for the fact in issue, and as being explanatory of the conduct of the deceased. It was however, further held by the Court in the said case (at pp. 1624-1625) (of Bom LR) = (at pp. 291-92 of AIR) that by the mere production of the document the truth of its contents could not be regarded as established and that the document in question, whilst admissible for the purpose of proving the fact that Rashida had made a complaint against the appellant which may have constituted a motive for the appellant to commit the offence charged, was not admissible for proving the truth of the contents of that complaint. The position in the present case is that as Mr. Jethmalani has contended, it is not the prosecution case that the murder of Housabai was committed because she had made the complaint to the police (Exhibits 42 and 43). The making of the complaint, therefore, does not itself constitute 'motive' within the terms of Section 8 of the Evidence Act. In my opinion, how-ever, these two documents (Exhibits 42 and 43) do fall within the terms of Section 32(1) of the Evidence Act and are admissible thereunder. In any event, there is oral evidence on record to show that there was litigation between Housabai and accused Nos. 1 and 2 which Housabai had launched for the purpose of asserting her right to her husband's share in the family property. The evidence with regard to that is to be found in the testimony both of witness Macchindra as well as of witness Madan Gopal who was the head of the Math in which the deceased Housabai had been residing. She had succeeded in obtaining a decree as a result of that litigation and had actually enforced the same by obtaining possession of the land. Having regard to these facts which are on record, even apart from Exhibits 42 and 43, it would be a reasonable inference for the Court to draw that relations between Housabai and accused Nos. 1 and 2 had been strained as a result of that previous litigation. There is, therefore, evidence in the present case with regard to the motive of accused Nos. 1 and 2 to commit the crime in question. No question of the adequacy of motive arises, for it is a matter of common experience. that very heinous crimes have sometimes been committed out of very slight motive. Motive, however, is of particular importance only in cases of purely circumstantial evidence for, in such cases, motive itself would be a circumstance which the Court would have to consider. In cases in which there is an eye-witness or eye-witnesses, motive, however, plays a very subsidiary role. Absence of motive should, in such cases, only make the Court circumspect in the matter of assessment of the evidence of the eye-witness. On the other hand, motive, if proved, merely adds to the weight and value of the evidence of the eye-witnesses. The fact that Housabai had made a will and that she intended to change the same, on which Mr. Jethmalani has relied, cannot possibly lead to the inference that she had created potential enemies, who might have committed her murder. It must once again be noted that in cases of direct evidence as opposed to circumstantial evidence, the fact that there might be other persons interested In killing the deceased is of little value, if the eye-witness or eye-witnesses are believed by the Court.
21. That leaves for consideration only the additional bit of evidence as against accused No. 2 viz., that he was absconding for a week after the incident. The date of the offence was the 19th of December 1968, and accused No. 2 was arrested, only on the 28th of December 1968. In order that the Court can legitimately draw the inference that the subsequent conduct of an accused was that of a guilty person and not of an innocent man, there must be proper material placed before the Court. All that the prosecution has placed before the Court in the present case are two bald statements, both made by Police Sub-inspector Borkar: (1) that the second accused was not in the village on the day soon after the incident when the police went there; and (2) that Police Sub-Inspector Borkar had sent about four constables in search of accused No. 2 to some villages. That evidence is, in my opinion, wholly insufficient to lead to the inference that the second accused was absconding since the date of the incident. In order to lead to that inference, the investigating police officer must lay before the Court further evidence to show that continuous watch was kept at the house of the accused concerned, and that a watch was also kept by him at the places which the accused frequented, including his place of work, but the accused did not turn up at all at any of those places during a certain period of time. In the absence of such evidence, I am afraid, no inference can be drawn that accused No. 2 was absconding and his subsequent conduct was that of a guilty person. It may, at this stage, be mentioned that accused No. 2 has, in his statement, raised a plea of alibi and has contended that since the 18th of December 1968 he had gone to a cattle fair at the village of Pusegaon and had returned to Nandgaon only on the evening of the 27th of December 1968. That statement may not be sufficient to sustain a plea of alibi, the onus of proving which is clearly on the accused, : 1956CriLJ827 . Even so, if the prosecution evidence falls short of proving that the accused was absconding ever since the time of the incident for a week, as the prosecution itself alleges no question as to whether the statement of the accused concerned is true or not, arises at all. I, therefore, hold that the prosecution has not proved this circumstance against accused No. 2,
22. It was lastly contended by Mr. Jethmalani that there was considerable scope for mistaken identity on the part of Macchindra on the facts of the present case. He has contended that Macchindra's mind was already conditioned into believing that accused Nos. 1 and 2 whose relations with Housabai had been strained had assaulted Housabai, and there was admittedly darkness at the time and place of the incident which, according to Mr. Jethmalani would make it impossible for Macchindra to identify the assailants with any degree of certainty. It is true that there must have been some darkness at the time of the incident, I have already expressed the opinion that the incident must have occurred some time between 6-30 p. m. or 7 p. m. that day, sunset being at 5-54 p. m. The incident, therefore, occurred just as twilight was about to end, and it could certainly not have been pitch dark at that tune, as I have already stated above. For the reasons stated by me, I have also come to the conclusion that in any event since accused Nos. 1 and 2 were persons whose faces had been seen by Macchindra every day for a continuous period of 15 days and were not strange faces, even making all allowance for darkness, it would be possible for Macchindra to identify them as the assailants. As far as accused No. 2 was concerned, there was the further fact that Macchindra had actually seen him following closely behind Housabai and talking to her very shortly before the incident itself. The incident disclosed concerted action by the two assailants and Macchindra's evidence that it was accused No. 1 who darted out from the canal and inflicted a blow with the iron bar on Madhav Buwa is in accord with the probabilities of the case, in so far as the facts show that accused No. 1 had been seen leaving the field with the iron bar shortly before the incident. Moreover, accused Nos. 1 and 2 were not only brothers who were living together, but had common motive or ill-will against Housabai. Whilst these facts would be of no direct assistance as far as the question of mistaken Identity which I am now considering is concerned, they do show that Macchindra's evidence is in accord with the probabilities of the situation. In the result, I reject the plea of mistaken identity, either with regard to accused No. 1 or accused No. 2.
23. I hold that both the accused have been rightly convicted of the murder of Madhav Buwa as well as of Housabai under Section 302 read with Section 34 of the Indian Penal Code. Once the conviction of the accused under Section 302 read with Section 34 of the Indian Penal Code in respect of the said two murders is confirmed, it must, on the same evidence follow that accused No. 2 has also been rightly convicted of the offence Under Sections 323 and 506 (Part II) of the Indian Penal Code in respect of having voluntarily caused hurt as well as criminal intimidation to witness Macchindra.
24. As far as sentence is concerned, Mr. Kadam on behalf of the accused has submitted that the sentence passed on accused No. 2 by the learned Sessions Judge should be commuted to the lesser sentence of life imprisonment. In my opinion, however, there is ho extenuating circumstance whatsoever as far as accused No. 2 is concerned. The conduct of both the accused persons appears to have been to create a false sense of confidence and security hi Housabai, a helpless woman who had come to work on her own field, and thereafter to trap her unawares in the manner in which they have done. I, therefore, hold that the maximum penalty of the law has rightly been inflicted upon accused No. 2. Accused No. 1 is fortunate in having the lesser punishment imposed upon him by the trial Court, for, reasons stated in paragraph 45 of its judgment which, in my opinion, are not proper reasons for inflicting the same. As far as Madhav Buwa was concerned, his only 'sin' was to have accompanied Housabai and helped her in harvesting the crop. Since, however, accused No. 1 has played a somewhat less cruel part in the actual incident as compared to the part played by accused No. 2, it may be possible to take the view that the sentences imposed on the two accused should not he the same. I hold that the convictions as well as the sentences passed on both the accused persons must be confirmed and the appeal filed by them dismissed,
25. I agree
26. Appeal dismissed. Convictions and sentences confirmed.
27. Appeal dismissed.