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State Vs. Dhiria Bhavji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 638 of 1960
Judge
Reported inAIR1963Guj78; 1963CriLJ431; (1962)GLR503
ActsBombay Children Act, 1948 - Sections 11; Code of Criminal Procedure (CrPC) , 1898; Indian Penal Code , 1860 - Sections 100
AppellantState
RespondentDhiria Bhavji
Appellant Advocate H.K. Thakore, Asstt. Govt. Pleader
Respondent Advocate K.T. Pathak, Adv.
DispositionAppeal allowed
Cases ReferredSidheswar Ganguly v. State of West Bengal
Excerpt:
(i) criminal - private defence- sections 100 and 302 of indian penal code, 1860, section 11 of bombay children act, 1948 and criminal procedure code, 1898 - appeal against acquittal of respondent earlier tried by juvenile court - law does not recognise possibility of encompassing death or harm by witch-craft - no right of private defence unless accused apprehended physical violence on spot from deceased - inflicting four serious injuries sufficient to cause death in ordinary course of nature not justified. (ii) written statement - no provision to file written-statement of accused in sessions trail - written statement filed by accused could not be considered. - .....the accused went to the police station and was arrested there. after considering the evidence the learned magistrate held that it is very clear that vali died in consequence of injuries sustained by her and that it was the accused who inflicted the injuries. but the learned magistrate then considered the defence case of the accused which was that his aunt vali was a witch; that when the accused went to drink water, she united her hair, started trembling and tried to catch hold o the accused when accused apprehending death attacked her. this defence version was accepted by the learned magistrate as a justification for the murder. he, therefore, acquitted the accused. the state has therefore filed this appeal against the acquittal. 24th april, 1961.3. the finding of the learned magistrate.....
Judgment:

Raju, J.

1. This is an appeal by the State against the acquittal of the respondent, who was tried by the Juvenile Court at Baria, for an offence under Section 302 Indian Penal Code for having caused the death of his aunt Bai Vali.

2. The prosecution case was that on the day of the offence i. e., on 8-7-59, the accused demanded seeds of maize from Shaku, the mother of the accused, and from Bai Jokhni and Bai Vali, the two wives of Vesta, who were then busy working in agricultural operations just near their hut; but the accused was told that there were no seeds to be spared. At that time deceased Vali went to the hut to drink water and was followed by the accused. After a few minutes, Shaku heard the sound of an axe-blow and found Vali lying on the ground with injuries on her head and she saw the accused running away. Bai Vali died soon after and the information was conveyed to the Police Station by Jokhni. In the meanwhile the accused went to the Police Station and was arrested there. After considering the evidence the learned Magistrate held that it is very clear that Vali died in consequence of injuries sustained by her and that it was the accused who inflicted the injuries. But the learned Magistrate then considered the defence case of the accused which was that his aunt Vali was a witch; that when the accused went to drink water, she united her hair, started trembling and tried to catch hold o the accused when accused apprehending death attacked her. This defence version was accepted by the learned Magistrate as a justification for the murder. He, therefore, acquitted the accused. The State has therefore filed this appeal against the acquittal. 24th April, 1961.

3. The finding of the learned Magistrate that the injuries on the body of Bai Vali were inflicted by the accused and that a result of these injuries-Vali died is amply supported by the prosecution evidence. (After discussing the evidence, the judgment proceeded :)

4. The Doctor who examined the injuries has deposed that there were four incised injuries; one on the right temple, second above, the left temple and the third and the fourth going to inner end of left eye-brow. According to the Doctor the front part of the skull was smashed and- opened up a 4' x 1 1/2' transverse gap and the top of the brain was sliced off. The cause of death was fracture of the skull. He has also opined that in the ordinary course of nature the injuries were sufficient to cause death. In these circumstances, the accused must be held to be guilty-for the offence of murder. But the learned Magistrate thought that the injuries were inflicted by the accused under the belief that the deceased was a witch and that she was going to encompass his death by witch-craft. It is true that the accused is a nephew of the deceased and a Bhil by caste. Bhils may be believing in witch-craft. In his examination at the trial the accused denied having caused injuries to Bai Vali. and added that he was submitting his statement in writing. He submitted a written statement in which, he pleaded not guilty and in the alternative he pleaded that, at the time of the incident, deceased Vali undressed her hair and raised her hand to catch the accused and so the accused had reason to believe that she was a witch and would eat him up and therefore in order to save himself he gave an axe-blow on the head of the deceased; that at that time the accused thought that his 'life was in danger and the people of his community strongly believed that if any woman was a witch and behaved in such a manner, she would eat persons and so in order to save himself, he killed Bai Vali.

5. As this was a case under the Bombay Children Act, 1948, it was tried as a summons case as provided under Section II of the Bombay Children Act, 1948. The procedure for trial of summons, cases is found in Chapter XX of Criminal Procedure Code. The procedure for trial of warrant cases is contained in Chapter XXI of Criminal Procedure Code. There is a provision in the Chapter relating to trial of warrant cases, viz., Section 256, providing that if the accused puts in any written-statement, the Magistrate shall file it with the record. There is no such provision in Chapter XX relating to the trial of summons cases. On the ground that there was no such provision in regard to the trial of Sessions cases, their Lordships of the Supreme Court held in Sidheswar Ganguly v. State of West Bengal, AIR 1958 SC 143, that written statement put in by the accused at the Sessions-trial, was rightly rejected and rightly excluded from the jury. Their Lordships were dealing with a case triable as a Sessions case and observed that there was no provision in the Criminal Procedure Code for a written statement being filed in a Sessions trial Similarly there is no such provision in regard to the trial of summons cases. Strictly speaking, therefore, the written statement filed by the accused in the instant case cannot be considered but even assuming that the version given in the written statement is treated as an argument of the accused, the version even if accepted, would not justify help-The law does not recognise the possibility of encompassing death by witch-craft or causing any barm by witch-craft. The apprehension of the accused in these circumstances must be held to be unreasonable. He would, therefore, have no right of private defence unless he apprehended physical violence on the spot from the woman in question. In any case, he was not justified in inflicting four serious injuries on the woman, any one of which would have completely disabled the woman and two of which were sufficient in the ordinary course of nature to cause death. In these circumstances, the accused must be held to have committed the offence of murder.

6. This is no doubt an appeal from an acquittal. This is a case in which there can be no reasonable doubt about the guilt of the accused. The learned Magistrate acquitted the accused on a wrong apprehension of the law applicable to the case. His findings of facts were against the accused. We are not differing from, him on any finding of facts. If in a case where there can he no reasonable doubt as to the guilt of the accused, the Magistrate or Judge concerned acquits an accused person, that would itself be a compelling reason to justify the reversal of the order of acquittal. In this case, as already observed, the learned Magistrate mis-apprehended the law applicable to the facts of this case. We are therefore justified in reversing the order of acquittal. We therefore reverse the order of acquittal and find the accused guilty for the offence of murder. In view of the provisions of Section 69 of the Bombay Children Act, 1948, we do not propose to use any more expressions, which are not permit-led.

7. Section 21 of the Bombay Children Act, 1948, provides that the Court shall have regard to the following factors --

(a) the character and the age of the child,

(b) the circumstances in which the child is living,

(c) the reports made by the Probation Officer, and

(d) such other matters as may, in the opinion of the Court, require to be taken into consideration In the interests of the child.

In this case we have not got the report of the Probation Officer. At the time of the commission of the offence the age of the accused was above 14 and below 16 years. Section 89 of the Bombay Children Act, 1948, runs as follows :-

'Notwithstanding anything contained in this Act, the period of detention in the case of a person under, the age of fifteen years shall be such as will result in the person being detained until he reaches the age of eighteen years:

Provided that the period of detention in the case of a child over fifteen years of age shall be not less than two years:

x x x x'

In a case such as this, the period of detention ina certified school should be at least two years.Even if the report of the Probation Officer is mostfavourable to the accused, there is no ground forreduction of the period of detention in a certifiedschool below two years.

8. We, therefore, order under Section 71 of the Bombay Children Act, 1948, that the respondent should be detained in a certified school for a period of two years from the date of this order.


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