Chennakesav Reddy, J.
1. The murder in this case is one of the common types as old and primeval as the sound of surf on the rocks at the sun-set murder due to sexual jealousy.
2. The locale of this tragic incident is a private nursing home of one Dr. Janardhana Reddy (P. W. 5) in a town in Cuddapah district called Rayachoti and evidently populated by a lively mixture of Hindus and Muslims. It happened on the morning of 11-9-1971 at about 10-45 A. M. The victim, Ameenabi, is an young married woman of 25 years with two daughters, P. Ws. 2 and 4 in the case, aged 11 years and 7 years respectively. The accused an equally young man of about 23 years had a romantic interest in the deceased woman. Her husband P.W. 7 was employed as a peon in the local library.
3. The accused and the deceased lived in the same locality known as Kothapalli in Rayachoti town. They were neighbours. P.W. 7 suspected his wife's illicit intimacy with the accused and shifted his residence to another locality known as Masapet. Despite the change in the residence, the accused continued to visit the house of the deceased. P.W. 7 came to know of the continued interest of the accused in the deceased. So P.W. 7 wanted to admonish his wife and the accused. On 1-9-1971 P.W. 7 informed his wife that he was going to attend a second show in a local cinema and went away from the house. He returned home at about 12 mid-night suspecting that the accused might be found in his house. He found the doors bolted from inside and could hear the conversation between his wife and the accused. He immediately sought and secured the help of Ramachandraiah and P.W. 8 who reside in the same locality to come and. chastise the accused. All the three came to the house of P.W. 7. On hearing the cries of P.W. 7 his wife opened the door and they found her and the accused in the house. P.W. 8 and Ramachandraiah chastised both the accused and the deceased and both of them agreed to severe their immoral connection from that date. About two days prior to the occurrence, the accused again visited the house of the deceased and beat her in the presence of her daughters, P. Ws. 2 and 4, as she refused to elope with him.
4. The deceased was taking treatment in the nursing home of P.W. 5 for her general weakness. She attended the nursing home on 3rd, 4th and 5th September, 1971. She stopped attending the hospital for about 5 days. She attended the hospital again on 10-9-1971.
5. On 11-9-1971 she went to the hospital in the jatka of P.W. 3 accompanied by her daughters, P. Ws. 2 and 4. P. Ws. 2 and 4 were always accompanying their mother whenever she went to the hospital. After the deceased and her daughters got into the nursing home, the accused came to the nursing home and called the deceased in the presence of the compounder P.W. 1. But the deceased did not respond and expressed some displeasure. P.W. 1 asked her as to who he was. She said that she did not know who he was and she had nothing to do with him. P.W. 1 asked P.W. 2 about the accused and P.W. 2 told him that the man who called her mother was Kothapalle Pathan Mahaboob Valli Khan, the accused in the case. Then the accused went out of the hospital. The deceased went into the hospital to take the injection. When she came out she apprehended harm from the accused and so requested P.W. 1 to accompany her upto the Jatka. P. Ws. 1, 2 and 4 were accompanying the deceased. P.W. 1 was behind the deceased and P. Ws. 2 & 4 were on the left side of the deceased. When they entered the verandah of the hospital, the accused suddenly entered, the verandah of the hospital from outside and stabbed the deceased on the right side of the chest with the dagger he was holding in his hands and ran away with the dagger in his hands. The deceased fell down on the doorway of the hall crying 'Amma'. On hearing the cries, P.W. 3 and P.W. 6 a tailor who has his shop in a portion of the building of the nursing home, and the Doctor P.W. 5 immediately came on the scene. They found the deceased lying on the threshold of the door-way with a bleeding injury. When the Doctor, P.W. 5 questioned P.W. 1 as to what had happened, P.W. 1 told P.W. 5 that one person by name Mohaboob Valli Khan stabbed the injured person and ran away. P.W. 6 had seen the accused running away with the bloodstained dagger. On the advise of P.W. 5, P. Ws, 1,
3 and 6 put the injured in the Jatka and took her to the Government Hospital, Rayachoti, By the time the jatka reached the Government hospital, the injured expired. Immediately P.W. 1 returned to the nursing home and informed P.W. 5 about the death of the injured Ammenabi. P.W. 5 asked P.W. 1 to give a complaint in the Police Station, Rayachoti P.W. 1 went to the Police Station and gave the report Ex. P-l at 11-30 A. M. to the Sub-Inspector of Police P.W. 15. P.W. 15 registered the case as Crime No. 66 of 1971 under Section 302, I.P.C. and submitted express F. I. Rs. to all concerned. He proceeded to the hospital and found the dead body in the Jatka of P.W. 3 near the hospital. He collected panchayatdars and held the inquest from 1-30 P. M. to 4 P. M. During the inquest he examined P. Ws. 1 to
4 and 6 and 7 and recorded their statements. Ex. P-32 is the inquest report. He sent the dead body for post-mortem examination through P.W. 14. Ex. P-21 is the postmortem certificate issued by the Doctor P.W. 12. The accused was arrested on 12-9-1971 in a choultry near Anjaneyaswamy temple while he was sleeping. As a result of the confession made by him, the dagger M.O. 1 was recovered under the panchanama Ex. P.25. After completing the investigation the charge-sheet was filed on 24-9-1971.
6. The defence of the accused was one of bare denial.
7. P.W. 1 the compounder, and P.W. 3 the Jatka driver, turned hostile and did not support the prosecution case. The learned Additional Sessions Judge was not prepared to accept the prosecution case which remained propped up only by the evidence of the daughters of the deceased P. Ws. 2 and 4, the Doctor P.W. 5, and the tailor P.W. 6. He felt that P. Ws. 2 and 4 might have gone out for playing after their mother went inside the nursing home for taking injection and could not have witnessed the attack on their mother. As regards the evidence of P.W. 6 he held that it is highly improbable that he could have seen the face of the accused when the accused was running away from the nursing home as the accused might have hardly taken 5 to 10 seconds in running away from the verandah of the nursing home after stabbing the deceased. The learned Additional Sessions Judge totally ignored the evidence of P.W. 5. Although P.W. 1 supported the prosecution case in the committal Court, the learned Judge dismissed an application filed by the prosecution to mark the evidence of P.W. 1 in the committal Court as evidence in the case under Section 288, Criminal P.C. Recording these findings, the learned Judge acquitted the accused. Aggrieved against the judgment of acquittal, the State has now preferred this appeal.
8. The first and the most basic problem that plagues this case concerns the actual presence of P. Ws. 2 and 4 in the company of their mother in the verandah of the hospital at the time of stabbing by the accused. We shall, therefore, now proceed to scrutinise the evidence of P. Ws. 2 and 4. Before so doing, it will perhaps be useful to just remind ourselves of the well-established principles governing the appeals against acquittals. It is now well established that in an appeal against acquittal under Section 417, Criminal P.C. the High Court has full power to review at large the entire evidence on which the order of acquittal is founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitations could be placed upon that power unless it be found expressly stated in the Code. No distinction is drawn between an appeal from an order of acquittal and an appeal from a conviction in the exercise of the powers of the High Court as an appellate Court, The principles laid down in Sheo Swarup v. King Emperor AIR 1934 PC 227 (2) : 36 Cri LJ 786 and which have been echoed by the Supreme Court right from its inception are:
The High Court should, and will always give prior weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
In Sanwat Singh v. State of Rajasthan : 1961CriLJ766 the Supreme Court observed that the principles laid down by the Privy Council in Sheo Swarup's case AIR 1934 PC 227 (2) : 36 Cri LJ 786 afford a correct guide for the appellate Court's approach to a case indisposing of an appeal against acquittal and the different phraseology used in the judgment of the Supreme Court such as (i) 'substantial and compelling reasons', (ii) 'good and sufficiently cogent reasons', and (iii) 'strong reasons', are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusions; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in its arriving at a conclusion on those facts but should also express those reasons in its judgment, which lead it to hold that the acquittal is not justified. Khanna, J., speaking for the Supreme Court in Bishen Singh v. State of Punjab : 1973CriLJ1596 reiterated and reaffir-ed the same principles. The Supreme Court in a more recent judgment in Shivaji Sahebrao Bobade v. State of Maharashtra : 1973CriLJ1783 after reviewing the several decisions rendered by it observed as follows :
In law there are no fetters on the plenary power of appellate Court, to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, - however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher Court not to upset the holding without very convincing reasons and comprehensive consideration.' The Supreme Court further observed:
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 chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.
9. Those being the principles on which this Court can exercise its powers in an appeal against acquittal, let us turn to analyse the evidence and scrutinise the soundness of the conclusions reached by the trial Court.
10. P.W. 2 has deposed that her father is working as a peon in the local library and that they were residing in Kotha-palle. Previously where the accused also was residing. It is in her evidence that the accused was visting their house in the absence of her father and that whenever the accused visited their house her mother used to ask her and her sister P.W. 4 to go out and play. Accordingly they were going out and playing whenever the accused visited their house. Thereafter her father shifted their residence to Masapet. The young girl stated that even after they went to Masapet, the accused continued to visit their house in the absence of their father. As usual the witness and her sister P.W. 4 used to go out and play whenever the accused visit their house. It is also in her evidence that five days prior to the occurrence the accused visited their house in the absence of her father and called her mother to accompany him. But her mother refused to go. Thereupon, the accused beat her mother. According to her, her mother was going to the nursing home of Dr. Janardhana Reddy in the Jatka of P.W. 3 for treatment and herself and her sister were also accompanying their mother to the hospital. They had been to the hospital for three days continuously, stopped to go to the hospital for sometime and again went to the hospital for two days, one day prior to the occurrence in this case and also on the date of the occurrence.
According to her on the date of occurrence herself her sister, P.W. 4, and her mother went in the jatka of P.W. 3 to the nursing home of Dr. Janardhana Reddy at about 10-30 A. M. after break-fast. They got down from the jatka at the hospital and were sitting in the hall in the hospital. The Jatka was stationed in front of the hospital. Then the accused came into the hall of the hospital and asked her mother to go with him--but her mother did not respond. P.W. 1 the compounder who was present in the hospital at that time asked her mother who that person was and her mother told P.W. 1 that she had nothing to do with that man. Thereafter P.W. 1 asked the witness about that person and she informed P.W. 1 that the person who called her mother was Kotha-palle Pathan Mahaboob Valli Khan, the accused. Thereafter the accused went out of the hospital. Her mother went inside the hospital and came out after taking injection. Her mother requested P.W. 1 to accompany her upto the jatka and P.W. t accompanied her into the verandah of the hospital. Then P.W. 1 was behind her mother, and the witness and her sister were on the left side of her mother. They were proceeding towards the jatka. At that point of time, the accused entered the verandah of the hospital and stabbed her mother with the dagger he was holding and ran away with the dagger in his hand. She also identified M.O. 1 as the dagger with which the accused stabbed her mother. She stated that her mother fell down immediately on the door-way of the hall crying 'Amma'
On hearing the cries of her mother P.W. 1. P.W. 6 and P.W. 5 the Doctor, came into the verandah. The witness and her sister P.W. 4 were weeping by falling on their mother. They were asked to go aside and accordingly they went and stood aside. Then she and her sister went to the local library and informed their father about the occurrence as soon as he came to the library. When they were coming along with their father to the hospital, they were informed on the way that their mother was removed to the Government hospital. They went to the hospital and found their mother dead. P.W. 4 has corroborated substantially the evidence of this witness. Both these witnesses were subjected to very lengthy and searching cross-examination. The substran-tum of their evidence is in no way shaken. Both these witnesses have deposed in a candid and honest manner and we find in the fabric of their evidence no exhibition of any over-zeal. There is absolutely no tendency in their evidence to exaggerate or add colour--a tendency commonly noticed in the evidence of witnesses of mature age. We also notice no trace of tutoring or speculation from the method and manner in which they have given their evidence.
The learned Additional Sessions Judge oscillated to the unacceptable extreme of altogether doubting the presence of these witnesses in the hospital at the time of occurrence. In so doing he overlooked the evidence of P.W. 5, the Doctor, who immediately came on the scene after hearing the cries of the deceased. P.W. 5 stated that at about 10-30 or 10-45 A. M. the deceased came to the hospital, that he gave her an injection and was later attending to the other patients. Then, accordingly to him, he heard some noise in the verandah of the nursing home and immediately went to the verandah. Then he found the deceased with a bleeding injury on her lying on the threshold of the door-way of the hall with face upwards. He also saw P. Ws. 1 to 4 and 6 in the verandah besides some other patients. He further questioned P.W. 1 his compounder as to what had happened. P.W. 1 then informed him that one person by name Mahaboob Ali Khan stabbed the woman and ran away. There is absolutely no reason to discredit the evidence of the Doctor who is a disinterested respectable person and a person of status. The learned Judge observed in his judgment that:
Even assuming P. Ws. 2 and 4 accompanied the deceased when the deceased went to the nursing home it is quite natural and probable that P. Ws. 2 and 4 might have gone out for playing after their mother went inside the nursing home for taking injection.
This presumption of the learned Judge is purely based upon imagination. Indeed not even a suggestion was made to any one of the witnesses either P.W. 2 or P.W. 4 in their lengthy cross-examination that they had gone out for playing after their mother went inside the hospital for taking an injection. We feel positive that P. Ws. 2 and 4 did accompany their mother to the hospital in the jatka and witnessed the attack on their mother by the accused in the verandah of the hospital. The evidence of those two witnesses is further corroborated by the evidence of P. Ws. 5 and 6. P.W. 5 has spoken to their presence with their injured mother when he immediately came out after hearing the cries of the victim.
P. W. 6, the tailor, states that he has seen the accused previously and that on the date of incident at about 10-45 A. M. While he was attending to his tailoring work in his shop located in a portion of the nursing home building, he heard a cry 'Amma' from the nursing home. On hearing the cry, he went out into the street and saw the accused getting down the slops of the nursing home. He saw him holding a bloodstained knife in his hand and. running towards west. He entered the verandah of the hospital, saw the injured lying on the threshold of the hall of the nursing home with a blood injury. He also further saw P. Ws. 1, 2, 3, 4 and 5 in the verandah of the nursing home. P. Ws. 2 and 4 were weeping at that time falling on their mother. We do not find anything superficial or artificial in his evidence for not relying upon it. The learned Judge again in dealing with the evidence of this witness held that
it is highly improbable that P.W. 6 would have seen the face of the accused when the accused was getting down from the verandah of the nursing home of P.W. 5 and running towards west.
He further observed that no identification parade was conducted for the identification of the accused by this witness. This witness, P.W. 6, stated in his Chief Examination that he had seen the accused previously. The accused was not a stranger to him. Even in his cross-examination he stated that he saw the face of the assailant when he was getting down the steps of the nursing home. He further said that when P.W. 5 questioned the children of the deceased they told P.W. 5 the name of the assailant. Therefore, once again, the reasons given by the learned Sessions Judge for rejecting the evidence of P.W. 6 are not supported by the evidence on record.
11. The learned Judge has further held that P. Ws. 2 and 4 are child witnesses and that there are material discrepancies in the evidence of P. Ws. 2 and 4 on the one hand and P.W. 1 on the other. The learned Judge was entirely in error in discrediting the evidence of P. Ws. 2 and 4 by comparing and contrasting with the evidence of P.W. 1 who has also been declared hostile by the prosecution. The learned Judge himself found no material discrepancies in the evidence of the witnesses themselves for discrediting their testimony. We have also further found that the evidence of these witnesses is substantially supported by the evidence of P. Ws. 5 and 6. What is more the name of the accused finds a place in Ex. P.1 itself given immediately after the occurrence. In the circumstances, we have absolutely no hesitation in coming to the conclusion that it was the accused that actually stabbed the deceased in the verandah of the hospital on the morning of 11-9-1971.
12. The learned Counsel for the accused strenuously urged that the evidence of P. Ws. 2 and 4 was not specifically put to the accused in his examination under Section 342, Cr.P.C. and that the accused was therefore seriously prejudiced in his defence. It is true and appears glaring that the evidence of P. Ws. 2 and 4 was not put to the accused. The examination under Section 342, Cr.P.C. was undoubtedly highly defective. But that does not by itself vitiate the trial. The accused must establish prejudice. It must be noticed that the defence of the accused was one of bare denial. In fact we asked the learned Counsel to give any explanation if he wants to give with respect to the evidence of P. Ws. 2 and 4 and the learned Counsel was unable to add anything to what the accused had stated. In the trial Court the accused was also defended by counsel engaged by him. In his presence the witnesses were cross-examined at length. Ultimately, what is to be ensured in the examination under Section 342, Cr.P.C. as observed by the Supreme Court in Jaidev v. State : 3SCR489 is whether the accused had any opportunity to say whatever he wanted to say in respect of the prosecution case against him. In this case the accused did have that opportunity. In these circumstances we are unable to hold that the accused is in any way prejudiced in his defence by the said defect. It will be apposite at this stage to refer to a recent ruling of the Supreme Court in Makan Jivan v. The State of Gujarat : 1971CriLJ1310 wherein the effect of non-compliance of Section 342, Cr.P.C. has been explained with elegance and clarity. Hegde, J. speaking for the Court observed :
It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trial. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused.
In that case the trial Court had only read out the statements made by the accused in the committal Court and after reading out merely asked the accused as to what they had to say about the prosecution evidence recorded in their presence. Therefore, it was held that the examination of the accused under Section 342, Criminal P.C. in that case was highly defective. Despite the defective examination, the Supreme Court held that the accused were in no way prejudiced as the plea of the accused was that they were not present at the scene at the time of the occurrence and any further questions would have served no purpose.
13. Then the question remains as to the nature of the offence committed by the accused in the circumstances of the case. The accused is an young man of 22 years. He appears to have been deeply in love with the deceased woman and wanted to elope with her She did not respond. On the other hand she appears to have shown her utter displeasure by turning her face when he called her in the hospital. Obviously the deceased-woman did not like his coming to the hospital and calling her in the presence of other patients waiting there. She also probably thought that it was the time for hiding her feelings rather than readily expressing them openly.
The accused appears to have reacted to his sudden impulses and instincts and stabbed this woman. At that time the deceased was also covering herself with a 'parda' M.O. 12. It has also a vent at one end. Even the evidence of P. Ws. 2 and 4 is that the accused suddenly came into the verandah and stabbed the deceased on the right side and immediately ran away. To our minds, it does not appear to be a case where the accused aimed and intended to cause the particular injury that was actually found on the deceased. The act of the accused is not that of the mythical savage. It is that of a person frustrated in his romantic interest in the particular lady. However, having regard to the sudden manner in which he stabbed the deceased, the fact that the deceased was covering herself with a 'parda' we consider it unsafe to hold that the injury found to be present on the deceased was the very injury intended to be inflicted by the accused. It appears to be most unintentional. The Woman Civil Assistant Surgeon P.W. 9 who conducted autopsy stated in her cross-examination that none of the vital organs were injured on the right side and the deceased met her death mainly on account of heavy haemorrhage. However, the circumstances do not enable us to elude the conclusion that the accused had the knowledge that his act was likely to cause death. The offence rightly falls under Sections 304, Part II, I.P.C. we accordingly convict the accused under Section 304, Part II, I.P.C. and sentence him to undergo rigorous imprisonment for a period of seven years. The appeal is accordingly allowed.
13. Before we part with this case, we are constrained to observe about the negligent manner in which the examination of the accused under Section 342, Cr.P.C. is done by the learned Additional Sessions Judge. P. Ws. 2 and 4 are direct witnesses to the occurrence. According to the prosecution, they are the daughters of the deceased and they have spoken to the entire prosecution case viz., the previous illicit intimacy of the accused with the deceased, the beating of the deceased by the accused a few days prior to the occurrence, the calling of the deceased by the accused at the hospital when the deceased was waiting in the hospital and actual stabbing itself of the deceased by the accused in the verandah of the hospital. This is the most material part of the evidence adduced by the prosecution in the case. P. Ws. 1 and 3 having turned hostile. But the learned Additional Sessions Judge failed to put even a single question to the accused in so far as the evidence of these two witnesses is concerned. The importance of the examination of the accused under Section 342, Cr.P.C. has been repeatedly pointed out in several decisions of this Court as well as the Supreme Court. The Sessions Judges and Magistrates should carry out the duty cast upon them in questioning the accused properly and fairly on the circumstances appearing against him so that the accused would get an opportunity to say whatever he wanted to say in respect of the prosecution case against him. Any perfunctory examination of the accused may lead to unnecessary and avoidable delay in the disposal of the case against the accused. Criminal justice is said to be sweetest when it is freshest.
14. We feel it is also now time for us to observe about the fast expansion in the fanatical consecration to the rule of 'benefit of doubt' in criminal trials, at the sacrifice of larger good to the society. Unjustified acquittals by Sessions Judges and Magistrates have become too common. We have noticed recently a steep rise in the number of appeals preferred against acquittals. It is true that the golden thread of proof beyond reasonable doubt runs throughout the web of our criminal jurisprudence. It is for the prosecution to prove every thing essential for the establishment of the charge against the accused. But Judges are under a duty to maintain a rational relation between the precepts of jurisprudence and those of reason, good conscience and discretion fashioned by tradition. The dedication to this doctrine of 'benefit of doubt' should not be allowed to reign sodden and supreme and should be subordinated to the primordial necessity of order in the social life. Fanatical devotion to the rule of 'benefit of doubt' and general unmerited acquittals based on spasmodic sentiments may lead to the danger of resorting to retribution by the community. That would mean self-redress or lynch-law which would wreck the very existing peace and orderliness of society. Justice is as much due to the accuser as to the accused. The balance must be maintained
15. It is well to remember in the administration of criminal justice the object of criminal law. The criminal law aims at the prevention of crime by inflicting punishment. One of the primary objects of punishment is protection of the people. It is the fear of the penalty that keeps the people in control. As observed in our Dharmasastras 'Danda-thse Bhaya Sarvam' 'Manu'. Therefore, too frequent acquittals of the guilty may tend to bring the criminal law itself into contempt. In this connection certain excerpts from the recent judgment of the Supreme Court in AIR 1973 SC 2622 at page 2626 : 1973 Cri LJ 1783 may be aptly quoted:
The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of special defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability... 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 indicted '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 eroding the judicial protection of the guiltless... 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 chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.