Sethi, J. -
(1.)The appellant was charged for the offences punishable under Sections 302 and 504 read with Section 114 of the Indian Penal Code in Sessions Case No. 57 of 1989 and after trial was acquitted by the learned Sessions Judge on 11-9-1990. The appeal filed against the judgment of acquittal was allowed by the High Court vide judgment impugned in this appeal holding the appellant guilty for the commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-. In default of payment of fine, the appellant has to undergo further rigorous imprisonment for three years.
(2.)The facts of the case are that on 27th March, 1989 at about 7.30 p.m., the appellant along with Ramji Khamisa Mansuri went to the Tea stall of the deceased armed with Dharia. He inflicted four blows to the deceased with that Dharia, as a result of which deceased Abdul Karim Ali Mohamed sustained serious injuries on head and other portions of his body. He was shifted to the Hospital but he succumbed to the injuries. At about 7.45 p.m. a message was received at Police Station, Bhachau from the Medical Hospital stating that Abdul Karim Ali Mohamed who has been brought to the Hospital had sustained serious injuries and was being shifted to Bhuj Civil Hospital.The intimation was recorded as Crime Entry No. 20 of 1989 in the Police Station diary. Thereafter the statement of Ali Mohmed was recorded in the police station and the FIR registered which was marked as Exhibit 30. On completion of the investigation, charge sheet was filed against the accused persons. The prosecution examined 10 wtnesses. Ali Mohdmed Husein (P.W. 4), complainant, Rajesh Velji (P.W. 5), Shashikant (P.W. 6) and Mamudo alias Abdulla (P.W. 9) were cited eye-witnesses. As Rajesh Velji (P.W. 5) did not fully support the case of the prosecution, he was declared hostile. The trial Court discarded the testimony of the eye-witnesses and acquitted the accused. It appears that the trial Court mainly relied upon the following aspects for acquitting the accused persons :
"(i) That Exh. 36, entry No. 20/1989 in the police station diary which came to be recorded on the information given by the medical officer of Bhachau Hospital is the first information report under Section 154 of the Code and not the complaint FIR lodged by the complainant Ali Mohmed at Exh.30.
(ii) That the time of death of the deceased Abdul is not established, hence, prosecution story is doubtful.
(iii) Identity of the Mudamal articles is doubtful as the witnesses have not been shown such items and have not identified;
(iv) Identity of one more witness Manudo is also doubtful and in his place somebody is placed as Manudo in view of the evidence led by the accused persons.
(v) The investigation carried out by the investigating officer Mr. Makwana is not truthful but is shaky and, therefore, it creates cloud of doubt.
(vi) Statement of some of the witnesses by the police under Section 162 are recorded late and, therefore, there was chance for manipulation.
(vii) Non-cognizable complaint lodged by A-1 and produced at Exh. 33 is not admissible in evidence as it was given to the police officer-investigating officer during the course of investigation;
(viii) the contradictions in the evidence of witnesses are also creating doubt on the veracity of the prosecution case.
(3.)In appeal, the High Court relied upon the testimony of the eye-witnesses and convicted the appellant vide impugned judgment. The High Court held :
"We have no hesitation in finding that the contradictions and the deficiencies and discrepancies highlighted by the trial Court in rejecting the evidence of 3 eye-witnesses supported by medical evidence and also F.S.L. report are in our opinion quite at micro level and some of them are factually not correctly stated and even if they are factually correct, would not in reality influence or affect the evidence of 3 eye-witnesses and other circumstances corroborating the evidence of eye-witnesses. The trial Court has committed thus serious error of law in placing unnecessary reliance on such insignificant, unsustainale and micro level discrepancies and contradictions which as such do not affect the main core of the prosecution story and has failed to rely on the evidence of 3 eye-witnesses whose evidence has remained unimpeachable on the main story of the prosecution that it was none else but only A-1 Allarakha who did commit murder of deceased Abdul Karim by giving him successive blows with dharia in a public place near the tea stall of the deceased and that too for a motive for pecuniary gain.
The trial Court has committed also serious error in giving benefit of doubt to the appellant A-1 Allarakha. We may mention at this stage that benefit of doubt if any arising from the record of the case on the main story of the prosecution which is reasonable and just in the circumstances could be given to the accused which is one of the fundamental principle of Criminal Jurisprudence. However, it must be strictly noted that the benefit of doubt should be a reasonable average person and not of a person who is afraid of legal consequences.
Before we conclude, we should also like to highlight one more important aspect which also significantly corroborates and supports the prosecution case and the evidence of 3 eye-witnesses and it is the recovery of Muddamal Article No.9 dharia from A-1.We have found while examining the impugned judgment that the trial Court has made certain observations and has raised certain conjuctures that the accused in such a situation would not always carry incriminating dharia all the time during the period of abscondance after the incident (it may be noted that the accused persons were found from village Madi and came to be arressted and at the time when the crime weapon article No. 9-dharia was recovered in presence of panches and the Muddamal dharia - Article No. 9 had human blood-stains on the blade portion of it). It is also supported by the report of the serologist. It is clearly found by the expert in the serological examination that it did contain the blood-stains of human blood group "B" which was of the deceased Abdul Karim as the clothes found from the dead body contained the same blood group. The panchnama prepared in this behalf is also supporting the case of the prosecution."