Prabhu Babaji Navle vs State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 19 September, 1955

Coram: Bose, J.

In this case the Court noted that the appellant, Prabhu Babaji Navle, had been indicted for the murder of his sister-in-law, Mst. Parvati. The indictment also named the appellant’s two sons, Babu and Bhika, his brother Ganpat, and Ganpat’s son Vishnu as co-accused. The Sessions Judge tried the matter and found Prabhu and his two sons guilty of murder under Section 302 read with Section 34 of the Indian Penal Code, sentencing each of them to transportation. The same judge acquitted Ganpat and Vishnu of all charges. Both the appellant and his two sons then appealed to the High Court. The High Court set aside the convictions of the two sons, thereby acquitting them, but it upheld the conviction of the father, Prabhu, maintaining the finding that he was guilty under Section 302 read with Section 34. The Court observed that this result raised the typical difficulty that arises in cases of alleged common intention. The appellant was not separately charged with personally committing the homicide, nor did the evidentiary record show that he had been charged with sharing a common intention with the four named co-accused or that he had taken part in the act itself. If all four of those co-accused were to be acquitted, the element of a shared intention with them would disappear, and, absent proof that the appellant shared a common intention with the actual murderer or murderers, a conviction under Section 34 could not stand. The Court explained that the prosecution could, in theory, have framed an alternative charge alleging that the appellant shared a common intention with other, unidentified participants. However, even in that scenario the prosecution would still have to prove the existence of such a common intention, either by direct evidence or by a lawful inference drawn from the facts. The Court held that, once the co-accused were eliminated, it was impossible to reach that conclusion because the entire charge and the evidence hinged on the appellant’s alleged common intention with those four specific persons and not with any unknown individuals. The factual background was then set out in detail. The parties were members of one extended family, and a simple family tree was helpful. Prabhu’s brother Ganpat, who was labelled as accused 1, was married to Parvati, labelled as accused 2, who was subsequently murdered. Their son Vishnu, labelled as accused 4, was married to Draupadi, who was the daughter of Prabhu’s elder brother Ramchandra from a former marriage. Prabhu’s two sons, Babu and Bhika, were labelled as accused 3 and accused 5 respectively. The three brothers—Prabhu, the late Ramchandra and Ganpat—each lived in separate adjoining houses, owned separate estates and cultivated their own lands independently. After the death of Ramchandra, his widow Parvati inherited his estate and, in order to generate income, she leased the lands that had come to her to her two brothers, Prabhu and Ganpat, on a half-crop-share arrangement. In the first year of the lease she received her prescribed half-share, but in subsequent years the two brothers retained possession of the entire crop and refused to pay her share. In response to this refusal, Parvati was advised to adopt a son so as to defeat the claims of Prabhu and Ganpat. The prosecution’s case was that the murder of Parvati was motivated by the enmity created by this dispute and by the desire to prevent the adoption, which would have secured her position against the brothers’ wrongful possession.

The Court observed that the adoption would not have materially altered the legal rights involved because the brothers possessed no immediate right to the land beyond a leasehold interest. Parvati retained the right to occupy the property for the duration of her lifetime, and upon her death that right would have passed to her husband’s daughter, Draupadi. Consequently, unless the parties were unaware of the law governing their respective rights or were not subject to the law of the place where the property was situated, the question of adoption would have been of little relevance. Nevertheless, the Court acknowledged the existence of hostility, noting that the two brothers were in unlawful possession of the land and clearly resented Parvati’s attempts to recover it. The narrative then turned to the factual occurrence. The victim, an eighteen-year-old woman named Parvati, was killed on the evening of 8 July 1952 as the sun was setting, just as she was preparing to take her evening meal. The sole eyewitness to the murder was a fifteen-year-old girl named Sunderbai, identified as PW 5, who was a close neighbour of Parvati and related to her by marriage. Parvati had invited Sunderbai to dine with her that evening. According to Sunderbai’s account, both women were seated inside a room ready to eat when, before they could begin, the third accused, Babu, entered carrying an axe and struck Parvati on the back of the head, causing her to fall. She then stated that the first, fourth and fifth accused—identified as Parbhu, Vishnu and Bhika—entered the room, prompting her to flee. Near the doorway she saw the second accused, Ganpat, who allegedly warned her not to leave until the act was completed. In cross-examination, Sunderbai clarified that the accused numbered one, four and five neither spoke to her nor to the deceased, and that it was Babu who had struck Parvati with the butt end of the axe before the others entered the house. The Court noted that, if Sunderbai’s testimony were accepted as true, it would connect the remaining accused with Babu and satisfy the requirement of prior concert under Section 34. However, both the Sessions Court and the High Court concurred that Sunderbai was not a reliable witness and refused to accept her testimony without corroboration. The assessors agreed with this assessment. The learned Sessions Judge concluded that the portion of her story implicating Ganpat was a later addition, found that Ganpat was not present at the scene, and consequently acquitted him, providing strong reasons for this conclusion. The High Court echoed this view, observing that she later attempted to involve Ganpat, who was possibly innocent. With Ganpat thus excluded, the alleged incitatory words attributed to him, as well as the presence of a guard at the door—both of which were the only indicators of a prior common plan—were also eliminated. What remained, the Court held, was that the first, fourth and fifth accused entered the room after Babu had struck Parvati and knocked her down, and that they neither acted nor uttered anything, merely standing by as the event unfolded.

In this case the Court observed that the first accused was alleged to have struck Parvati, causing her to fall to the ground, after which the other accused did nothing and uttered no words, merely entering the room. The Court noted that such conduct could be consistent with innocence, because it is natural for men to rush to a scene where they hear a girl being beaten and then stand frozen with shock when they discover she has been killed. This reaction would be expected of any man, and would be even more understandable to a father who hears that his impetuous son has gone out with an axe. The Court further stated that the presence of the third accused, who was alleged to have performed the actual killing, was doubted, as was the presence of the other three accused, and consequently all four of them had been acquitted. If those individuals are eliminated, the only evidence concerning Sunder’s testimony is that the first accused entered the room, apparently alone, and became a witness after the fact to a murder committed by some third party with whom he had not even a passing acquaintance.

The Court then turned to the Sessions Judge and the High Court’s findings that Sunder claimed the first accused and the others possessed lathis. The Court emphasized that Sunder never mentioned a lathi in her testimony; her entire evidence consisted solely of the passages previously set out. Accordingly, the Court remarked that this lack of detail did not meet the standard of care expected of judges when men’s lives are at stake. The Court noted that only two additional witnesses were on record, and neither of them had witnessed the actual occurrence. Raoji, identified as Parvati’s father and recorded as PW-3, testified that he was seated on the “ota” of his neighbour Kushaba’s house—Kushaba being the man whom Parvati had decided to adopt despite his age of forty-five and her age of eighteen. Raoji described the proximity of the houses as roughly twenty-five to thirty paces, indicating that the houses of the accused and Parvati were contiguous.

Raoji’s evidence was as follows: he claimed that while he was sitting on Kushaba’s ota, Sundera informed him that accused numbers 1, 3, 4 and 5 had killed Parvati. He said he immediately went to Parvati’s house, where he saw accused 2 standing near the door, telling those inside, “do not return unless she is completely done with.” He reported that the door was bolted from inside, that his attempt to push the door open failed, and that subsequently the occupants opened the door, allowing accused 1, 3, 4 and 5 to emerge. Raoji stated that accused 3 carried an axe while the other three carried sticks.

The Court affirmed that the Sessions Judge had rejected Raoji’s testimony for the sound reasons articulated in the lower court’s judgment. The Court observed that the attempt to implicate the second accused was a clear afterthought, and it was unlikely that the second accused would repeatedly repeat his exhortation for the benefit of both Sunder and Raoji. The Court recalled that Sunder’s statements had been noted earlier, and that the evidence of Raoji regarding the lathis remained uncorroborated. Consequently, the Court concluded that the evidence against the first accused, based solely on Raoji’s uncorroborated testimony, could not be accepted. It will be remembered that Sunder says

In the testimony of Sunder, it was stated that she heard the accused speak as she was leaving the room on her way to Kushaba’s house. Raoji, another witness, claimed that he heard the same words again when he went to the same place and attempted to open the door. The learned Sessions Judge observed that Raoji’s testimony could not be accepted unless it was supported by other evidence, and the assessors concurred with that view. There was no other evidence to back up Raoji’s statements about the wooden sticks (lathis); he was the sole witness who mentioned them. Moreover, the High Court did not rely on Raoji’s account for that point. The High Court’s reliance was placed on Sunder’s testimony, which made no reference to any lathis. The original first-information-report likewise omitted any mention of the sticks and did not name the second accused, Ganpat. Because both the Sessions Judge and the assessors agreed that Raoji’s testimony required corroboration, and because the High Court also rejected his statements concerning four of the five accused on the ground of lack of corroboration, the allegation that Raoji placed a lathi in the hand of the first accused could not be sustained. Consequently, the only surviving fact was that the first accused was observed emerging from the room accompanied by persons whose identities were unknown. The subsequent witness, Laxman (identified as P.W. 9), contributed nothing further to the case. He testified that he heard the sound of beating emanating from Parvatibai’s house, stepped outside to see what was happening, saw accused numbers 1, 3 and 5 entering their own house, and then returned to his own residence. The fact that these accused left their house to investigate the disturbance and subsequently came back was as consistent with their innocence as the fact that the witness himself performed the same action.

The High Court placed great emphasis on the discovery of a single spot of human blood on the appellant’s dhoti, holding that this finding corroborated Sunder’s version of events. However, the Court clarified that such corroboration could only confirm the appellant’s presence at the scene after the crime had been committed; it did not establish any prior concert required under Section 34, especially since all other evidence had been rejected. In other words, the blood stain did not prove participation in the offence. The Court noted that, in the scenario painted by the High Court judges, the blood could just as plausibly have splattered onto the dhoti of an entirely innocent person who happened to be at the location under the circumstances described earlier in the judgment. Until evidence to the contrary is produced, the presumption must be that the appellant’s presence, as described by Sunder, was innocent. Regarding the forensic evidence, the Court observed that the Chemical Examiner’s report on the bloodstains was careless and perfunctory. The examiner’s duty, as articulated by the Court, was to specify the number of bloodstains on each exhibit and to describe the size of each stain, unless the stains were so minute or so numerous that a detailed description was impracticable. Simply stating that blood was detected on an exhibit, without such particulars, was deemed insufficient and indicative of a broader problem observed in similar recent reports.

The Court observed that a forensic report which only declares that blood was found, as the report in this case does, is inadequate. Such a bare statement fails to indicate the number of stains, their size, location or any other detail that could assist the fact-finder. The Court warned that reliance on such a minimalist report could cause a miscarriage of justice, because a judge might be compelled to acquit where a more thorough analysis might have supported a conviction. Accordingly, the Court expressed its hope that these observations would be communicated to every chemical examiner throughout the country, noting that while some examiners submit cursory reports, many others produce comprehensive and detailed examinations as is proper practice.

The Court then turned to the procedural history concerning the second accused. It noted that the learned Sessions Judge had correctly identified a conspicuous effort to implicate the second accused, who had not been named in the original information report nor mentioned before the Committal Court. Nevertheless, four witnesses – identified as Kushaba (P.W. 1), Raoji (P.W. 3), Parvati Kushaba (P.W. 4) and Sunder (P.W. 5) – testified in the Sessions Court that the second accused was present and played an active, significant role. The Court found that these witnesses appeared to have coordinated their testimony in order to implicate the entire family, regardless of individual guilt, and recognized the danger of such a strategy especially in relation to the elderly father, whose age was recorded as sixty-three years. While the Court declined to re-examine the evidence afresh, it held that, based on the consistent findings of both lower courts, there was no material on which a determination of a prior concert, as required by Section 34 of the Penal Code, could rest. Consequently, because the conviction could not be sustained without the assistance of Section 34, the Court set aside the conviction and the sentence. The appeal was allowed, the appellant was acquitted of the charge, and he was ordered to be released.