Virji v Gangji (Cr. App. No. 82/34.) [1934] EACA 4 (1 January 1934)

## $\mathcal{A} = \mathcal{A} \times \mathcal{A}$ APPELLATE CRIMINAL.

Before SIR JOSEPH SHERIDAN, C. J. and GAMBLE, Ag. J.

## BHANJI VIRJI, Appellant (Original Accused)

AKABARALLI JAMAL GANGJI; Respondent (Original Complainant).

## Cr. App. No. 82/34.

Criminal Procedure—Evidence—Reasonable doubt.

The trial magistrate on the evidence found the appellant guilty of threatening the respondent and ordered him to be bound over to keep the peace.

Held (4-3-35).—That the cumulative effect of the points arising from the evidence, while allowing for the trial Magistrate having seen the witnesses, justified the Supreme Court in interfering on the ground that a reasonable doubt existed and in allowing the appeal.

Hopley for appellant.

Modera for respondent.

JUDGMENT.—In our opinion the direct evidence which is not of an independent character being that of the complainant and his uncle, between whom and the accused there had existed bad blood for a number of years, is in conflict with the probabilities of the case. Instances of such conflict are:

(1) Failure of complainant to return to the D. O. after the incident.

$(2)$ Delay in reporting to Court.

(3) That no disinterested persons saw or heard the incident though one would have expected them to do so.

(4). A consideration of Exhibit 1 indicates the manner in which accused took exception to the complaint to D. O. That he wrote the letter as the foundation of a defence to be raised in the event of his being brought to Court would be to credit him with a cunning we are not prepared to infer.

The incident alleged is of such a nature that there is no means of checking the truth of the complaint by such evidence as marks of an assault on the person of the complainant or medical evidence.

Our experience tells us that the use of knives in cases of this kind is lightly alleged as a means of convincing Courts that something serious has happened and further teaches us to be on the look out for independent evidence whether direct or circumstantial to support the allegation.

Considering the cumulative effect of the points we have mentioned, while allowing for the learned magistrate having seen the witnesses, we are of opinion that the weight and character of the evidence is such that there exists a reasonable doubt in the case of which the accused should be given the benefit.

The appeal is allowed and the order discharged.