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Judgment
J. R. Vimadalal, J.—After stating the facts and dealing with the evidence of Macchindra and the medical evidence the judgment proceeds, Before, how ever, 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 u/s 157 of the Indian Evidence Act, because it is intended to be evidence of former statements made by Macchindra which, the prosecution claims, corroborate his testimony in the trial Court, and such former statements would be admissible u/s 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 Can notes 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" can note 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 kid down by the Supreme Court in the case of Rameshwar Kalyan Singh v. State of Majastkan1. The statement in question in that case was made by Mt. Purnit 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 u/s 157 of the Indian 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 (para. 29):
"The first 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 Indian 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 Macchindra 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. Macchindra was a stranger to the locality and, after having 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 persons 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 the 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 is the interregnum between his running away from the site of the incident and his narrating the incident to the said two persons. 1, 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 u/s 157 of the Indian Evidence Act. I will now turn to the corroborative evidence of Pandurang, Ramchandra and Nivrutti.
Mr. Jethmalani sought to contend that the fact that the police had chosen to record the statements of Pandurang and Nivrutti u/s 164 of the Code of Criminal Procedure shows that the police thought that these witnesses were all unreliable. In support of that contention, he has relied upon the provisions of section 155(1) of the Indian Evidence Act which lay down that the credit of a witness may be impeached by the evidence of person 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 one of the exceptions 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 be legitimate or permissible. I must, therefore, reject this contention of Mr. Jethmalani also,
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 (exh. 28) contains a portion which was clearly inadmissible in evidence u/s 27 of the Indian 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 (exh. 28) is taken to have been made by accused No. 1, 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 exhs. 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 u/s 32(1) of the Indian Evidence Act, or u/s 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 Vs. State, . 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 of the hands of the accused. The view expressed by the Division Bench in the said case was (at pp. 1623-1624) that, whilst the said complaint "may be admissible" u/s 32 (1) of the Evidence Act, the same was in any event admissible u/s 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) 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 (exhs. 42 and 43). The making of the complaint, therefore, does not itself constitute "motive" within the terms of section 8 of the Indian Evidence Act. In my opinion, however, those two documents (exhs. 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 exhs. 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 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-witnesses. 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.
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 December 19, 1968, and accused No. 2 was arrested only on December 28, 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 accused No. 2 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 accused No. 2 was absconding since the date of 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 December 18, 1968 he had gone to a cattle fair at the village of Pusegaon and had returned to Nandgaon only on the evening of December 27, 1968. That statement is not sufficient to sustain a plea of alibi, the onus of proving which is clearly on the accused: Gurcharan Singh v. State of Punjab3. Apart from the question of alibi, 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.
[The rest of the judgment is not material to this report.]