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Emperor Vs. Shankar Ganpat Pawar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 97 of 1944
Judge
Reported in(1945)47BOMLR654
AppellantEmperor
RespondentShankar Ganpat Pawar
DispositionAppeal allowed
Excerpt:
.....a reasonable doubt regarding the guilt of the accused, especially in view of the subsequent conduct of the accused, the darkness at the scene of offence, the failure to account for the injury on the left middle finger of the accused, and the disappearance of the weapon......accused) moved back and caught hold of vishnu's right wrist and tried to wrest the knife with his left hand, that in doing so he got a cut on his left middle finger, that vishnu who was then drunk gave a jerk to his hand towards his own body and when he (the accused) let go the hold, the knife in vishnu's hand was drawn with force towards his own body, that vishnu lost his balance, and when he bent, the knife struck him on his left chest, and that vishnu then fell down. he further stated that, after vishnu fell, babu took the knife from his hand and ran away. the accused left the place and was afterwards arrested by the police constable. the jury by a majority of four to one returned a verdict that the accused was not guilty of the offence charged against him. the learned additional.....
Judgment:

Lokur, J.

1. This is a reference made by the Additional Sessions Judge of Poona under Section 307 of the Criminal Procedure Code, 1898. The accused Shankar alias Baban Pawar was a friend of the deceased Vishnu, who Was living in the house of Babu Kale in Shukrawar Peth, Poona City. Vishnu and Babu Kale went to the toddy shop at about 8-30 p.m. on the night of May 21, 1944, and thence they proceeded to the liquor shop at about 9 or 9.15 p.m. They met the accused there, and Vishnu asked him to give some drink to him and his friend Babu at his cost. The accused said that he had no money, and called them some bad names. This was followed by an exchange of abuses between them, and Vishnu lost his temper and struck the accused with his chappal on his face. The accused retaliated by giving a slap on Vishnu's face. In the meantime witness Gulam Mahomed came out of the liquor shop and separated them. He took the accused away in the direction of the lamp post to the north, and, when they had gone some distance, the accused slipped away and ran towards Vishnu. The accused took out his knife from his pocket, opened its blade, and, going to Vishnu, suddenly stabbed him near his left chest. Vishnu cried aloud and fell down on the ground. He died almost instantaneously, and a large crowd of people collected. The accused left the place, stood for a while near the telephone post at a distance of about twenty-five feet, and then proceeded to the electric lamp post at a distance of about thirty feet more. He was carrying an open penknife still in his hand, and talked to Police Constable Dhawale, who was going on a bicycle. Police Constable Powale, who had seen the accused stabbing Vishnu, followed the accused and caught hold of him by his neck. He wanted to take him to the Police Gate, but the accused said that he would first go to his house and talk to his people. As he promised to go with him thereafter to the Police Station quietly, Constable Powale accompanied him to his house. The accused told his women what had happened, and then both he and Constable Powale started for the Police Gate. On the way the accused gave a jerk to the Constable and ran away. Powale pursued him and caught hold of him, but in the meantime the accused had thrown away the penknife in his hand, and the Constable was not able to trace it, He took the accused to the Police Gate and produced him before Constable Shelar who was then in charge there. Police Jamadar Shaikh Abdul Kadar, who came to know about the incident, went to the scene of offence and found that Vishnu had already died. He kept a Police Constable to watch the dead body, and sent a message to the Police Sub-Inspector. The Sub-Inspector recorded the complaint of the Jamadar, and started investigation. He held an inquest over the dead body, and sent it to the Sassoon Hospital for post-mortem examination. The accused was formally arrested at 11-30 p.m., and an electric torch was found with him. The Sub-Inspector completed the investigation and sent a charge-sheet against the accused on May 28, 1944. The accused was committed to Sessions on a charge under Section 304, part I, of the Indian Penal Code, 1860, and was tried by the Additional Sessions Judge and a jury. The accused pleaded not guilty, and stated that, when he met the deceased Vishnu and Babu Kale near the liquor shop, Vishnu asked him to pay for his drink and, when he refused, Vishnu got so enraged that he took out his chappal and hit him on his face, that he (the accused) told him (Vishnu) that he would lodge a complaint with the police and being enraged Vishnu took out an open knife from his pocket and aimed a blow at him, that he (the accused) moved back and caught hold of Vishnu's right wrist and tried to wrest the knife with his left hand, that in doing so he got a cut on his left middle finger, that Vishnu who was then drunk gave a jerk to his hand towards his own body and when he (the accused) let go the hold, the knife in Vishnu's hand was drawn with force towards his own body, that Vishnu lost his balance, and when he bent, the knife struck him on his left chest, and that Vishnu then fell down. He further stated that, after Vishnu fell, Babu took the knife from his hand and ran away. The accused left the place and was afterwards arrested by the Police Constable. The jury by a majority of four to one returned a verdict that the accused was not guilty of the offence charged against him. The learned Additional Sessions Judge, disagreeing with the verdict, has made this reference under Section 307 of the Criminal Procedure Code.

2. In dealing with a case submitted to the High Court under Section 307 of the Criminal Procedure Code, 'the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him upon the charge framed and placed before it.' This does not mean that in every case the High Court should appreciate the evidence and come to a conclusion independently of the verdict of the jury. Ordinarily the High Court will not interfere with the verdict, unless it is either perverse, or manifestly wrong, or wholly unreasonable, or definitely contrary to evidence, or not supported by any evidence or induced by a misdirection or non-direction in the Judge's charge to the jury. In the words of Beaumont C.J. in Emperor v. Bai Lali : (1932)34BOMLR896 , the High Court will not interfere with the verdict of a jury merely because on a perusal of the evidence the Judges think that they would have come to a different conclusion from that at which the jury arrived, and before interfering with the verdict the Court must come to the conclusion on a perusal of the evidence that no jury could really have entertained any reasonable doubt as to the guilt of the accused. Under Section 307, Sub-section (1), of the Criminal Procedure Code, when the Judge disagrees with the verdict of the jury, he can make a reference to this Court only if he is clearly of opinion that it is necessary for the ends of Justice to submit the case to the High Court, and the only question which the High Court will consider itself is whether the Judge's view that the verdict of the jury has been perverse or unreasonable or altogether against the weight of the evidence, is justified by the record ; and if the High Court come to the conclusion that it is not, then it will accept the verdict of the jury. As observed by the full bench in Veerappa Goundan, In re I.L.R (1925) Mad. 956 it is not the duty of the High Court to try the whole case de novo, as if there had been no trial in the Sessions Court at all ; and the jury being primarily the tribunal to find the facts, it is not for the High Court to interfere with the verdict of the jury unless it is unreasonable. Considering the, evidence from this point of view, we are not prepared to say that the verdict of the jury in this case is manifestly wrong or unreasonable, much less perverse. The learned Judge's charge to the jury is fair and exhaustive and there is no misdirection or non-direction In it.

3. It is true there are three eye-witnesses who depose to having actually seen the accused stabbing the deceased Vishnu on the left side of his chest with a knife. Babu Kale, who was Vishnu's companion, was admittedly present when the incident took place. He is certainly an interested witness, and the accused says that it was he who left the place with the penknife with which the deceased was injured. Nivratti, who was a servant in a chivda shop inside the compound of the liquor shop, says that he had just come out of the chivda shop when the deceased was asking the accused to give him a drink of liquor, that he saw the deceased giving a blow on the face of the accused with a chappal, that Gulam Mahomed then took away the accused from the place, and that the accused slipped away and returning to the deceased stabbed him on his chest with a knife. The third eye-witness is Constable Sonu Powale who was passing by the liquor shop at 9 p.m., and he says that on seeing a crowd gathered near the liquor shop he stopped for a while and saw the accused come running from the side of Datta Upahar Griha and opening his knife, that he then saw the accused go to the deceased, stab him, and run away towards the lamp post with the blood-stained knife in his hand, that he then went after him, caught him and took him to his house at his request, and that when he was taking him to the Police Gate from there the accused ran away and threw the knife somewhere. If the evidence of these three witnesses is believed, then there is no doubt that the accused stabbed the deceased Vishnu and caused his death. But there are various circumstances which go to throw some doubt on this evidence, and, if the jury refused to place any reliance on it, or preferred to give the benefit of the doubt to the accused, their verdict cannot be said to be perverse or unreasonable.

4. In the first place, it was a dark night, the next day being Amavasya. It is said that there was a lamp post near the gate of the liquor shop, but it did not shed any light on the road where this scuffle took place. The electric lamp post was at a distance of about sixty feet from that place, and the evidence of Vyankataswami shows that it was dark at the plae where Vishnu's corpse lay. In his cross-examination he admits that there was no light on the scene of offence. It is, therefore, difficult to believe that the eye-witnesses could definitely say how Vishnu came by his injury.

5. The version of the accused is not wholly impossible, and the jury seem to have accepted his version. The conduct of the accused after Vishnu fell down shows that he may not have committed the murder. Immediately after he left the scene and went towards the lamp post, he met [Police Constable Dhawale whom he knew and who was going on a bicycle. Dhawale says that he saw a crowd of people near the liquor shop, and that getting down from his bicycle he had a talk with the accused standing near the electric lamp post. The accused inquired with him as to where he was working, and in the meantime Constable Powale came there and took away the accused. In his cross-examination he definitely says that he did not see anything in the hands of the accused at that time. Powale, on the other hand, says that he saw the bloodstained knife in the hand of the accused, and yet he did not ask Constable Dhawale to help him in arresting the accused and removing the weapon from his hand. The conduct of Powale seems to be quite unnatural since he consented to take the accused to his house and to let him have a talk with his people, knowing full well that he had committed a murder in his presence and was carrying the weapon with which he had stabbed the deceased. His explanation is that he was afraid. But there was a large crowd of people who had gathered at the scene of offence, and Constable Dhawale, whom he knew well, was close by. It was easy to overpower the accused if he resisted and take him to the Police Station immediately with the bloodstained weapon in his hand. Instead of that, he accompanied the accused to his house, as if nothing' serious had taken place, he allowed him to chat with the members of his family, and then when returning, he allowed the accused to slip from his hand and dispose of the knife. It is strange that although all this took place in the presence of the Constable, he was not able to trace the knife. Even now the knife has not been traced. This seems unaccountable, and lends support to the version of the accused that Babu Kale himself removed the knife from the hands of the deceased and went away with it. Babu Kale admits that after the deceased fell down he left the place and never returned to it. Babu Kale was a friend of the deceased, and it is rather strange that he did not care to stay near the corpse until it was removed. He says that he went to give information to the mother of the deceased, but he himself did not return with her.

6. Then there was an injury on the inner side of the left middle finger of the accused. The learned Additional Sessions Judge has pointed out to the jurors in his summing-up that the prosecution did not offer any explanation of that injury. The accused: says that when he was trying to snatch away the knife from the hand of the deceased by holding his wrist with his right hand and trying to loosen his grip with his left hand, his finger was injured by the knife. This is a quite plausible explanation of the injury on the finger of the accused, whereas on the version of prosecution no explanation has been offered. This circumstance also may have weighed with the jury.

7. The accused has given a vivid description as to how he caught hold of the wrist of the deceased when the deceased raised the penknife to stab him, how he twisted1 his hand, and when the deceased pulled his hand with a jerk and bent forward, how the knife pierced into the deceased's heart. The medical officer who made the postmortem examination says that the wound on the chest must have been caused by a straight stroke. This is quite compatible with the version of the accused. It does appear from the description of the injury as given in para. 17 of the memorandum of post-mortem examination that the stab wound was transverse in the left first inter-costal space about 1' to the left mid-sternal line and about ' below the left sterno-clavicular joint, and the weapon caused injury to the heart also. In the panchanama the wound is described as horizontal. Possibly it may have appeared horizontal on account of the width of the blade of the knife. From this description of the wound it is not safe to come to the conclusion that the version of the accused cannot be true.

8. Thus we find that there are various circumstances which may have led the jury to entertain a reasonable doubt regarding the guilt of the accused, especially in view of the subsequent conduct of the accused, the darkness at the scene of offence, the failure to account for the injury on the left middle finger of the accused, and the disappearance of the weapon. We, therefore, do not think that this is a fit case in which we should interfere with the verdict of the jury.

9. The reference is, therefore, not accepted, and the accused is acquitted and discharged.


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