Chowdhry, J.@mdashThese are two appeals from judgment and order of the learned Sessions Judge of Gorakhpur, dated 20-11-1955. One, which is appeal No. 1804 of 1955, is by the 14 men Guchun Misir, Shivraj Misir, Ram Avadh; Palakdhari, Ram Nawal, Bire alias Birbal, Deoki, Jiau, Jattan, Bishwanath son of Ram Baran Referred to hereinafter as Bishwanath I), Prahlad, Mahatam, Murti and Brijbhushan, and the other, which is appeal No. 1805 of 1955, by the two men Bishwanath son of Sitararn (referred to hereinafter as Bishwanath II) and Narbadeshwar.
2. Guchun and Shivraj have been convicted u/s 302, IPC and sentenced to death while the remaining; 14 have been convicted u/s 302, read with Section 149, IPC, and each of them has been sentenced to imprisonment for life. All the 16 Appellants have been further convicted under Sections. 435, 324 and 323, read with Section 149 IPC. and under Sections. 148 and 379, IPC, and each of them has been sentenced on these accounts to rigorous imprisonment for 2 years 1 years, 6 months, 2 years and 1 year respectively. Ten others tried along with the Appellants were acquitted. The record is also before us for confirmation of the sentences of death.
3. The Appellants belong to seven villages situate within a radius of 6 miles from Madanpura, the village of occurrence. Guchun, Shivraj and Narbadeshwar, who are brothers belong to Rudrapur. Palakdhari, Ram Nawal, Deoki, Prahlad, Mahatam, Murti and Brijbhushan belong to Madanpura. Of these Ram Nawal is a brother of Murti and Prahlad a brother of Brijbhushan. Bire and Bishwanath I are residents of Sahulakhor, the former being an uncle of the latter Ram Avadh is a resident of Sonari. Jiau of Mandhari, Jatan of Majgawan and Bishw Nath II of Garaina.
4. Before proceeding further reference may be made to two families of Madanpura. One, which may be called the family of the victims, consisted of the four brothers Tikadhari, Ram Charan, Ram Naresh (P.W.12) and Jaldhary (P.W.13) the first two of whom were killed and the last two injured. Tilakdhari''s son is Suraj Narain (P.W.1) and the latter''s wife Smt. Gena. The other family consisted of the six brothers Dalsingar, Ram Niwas, Matabadal, Bharosa, Rikhnath and Subhag, none of whom, it is said, had any issue. Their sister, Sarjudevi, was married to one Ram Sundar and they have a son Avadh Behari (P.W.22)
5. The prosecution suggest a two fold motive for the commission of the offences in question. The first concerns a dispute relating to the property of Dalsingar and his brothers. Dalsingar made a gift of his share to Ram Sundar by a registered deed Ex. P33 dated 18-l-1955, and Ram Sundar in his turn gifted that property to his son Avadh Behari (P.W.22) by another registered deed Ex. P34 dated 6-2-1945. The last surviving brother was Ram Niwas on whose death in 1945 Avadh Behari (P.W.22) applied for mutation of his name on the property left by him, and objections were filed by a number of persons, including the Appellant Bishwnath I and his mother Janakraji. Janakraji claimed (according to Avadh Behari (P.W.22) falsely to be the daughter of Ram Niwas. Neither of the rival claimants was able to look after his interests in the mutation case. Avadh Bihari (P.W.22) because he was a clerk in Gorakhpur and the Appellant Bishwanath I, who resided in Sahulakhor, 5 miles away, because he lacked funds. Each of them therefore enlisted support of persons to look after their respective interests in the mutation case. Avadh Behari P.W.22 did so by creating occupancy rights in two bighas in favour of Smt. Gena, wife of Suraj Narain (P.W.1) by a registered deed Ex.P14 dated 22-8-1949. He thus secured the help of the four brothers who were the victims of the assault in this case. The Appellant Bishwanath I and his mother Janakraji made a sale of half the disputed property by means of a registered deed Ex. P35 dated 19-7-1947 in favour of the Appellants Guchun and Shivraj and their brothers Sheopujan and Brahmadeo in consideration of Rs. 2000 and of the transferees looking after the litigation. Dalsingar and Ram Niwas had mortgaged some property to the two brothers the Appellants Prahlad and Brijbhushan, but Avadh Behari (P.W.22) redeemed the mortgage and thus incurred the displeasure of the erstwhile mortgagees. Thus, Tikadhari and his brothers, who were the victims of the assault, were ranged, as espousers of the cause of Avadh, Behari (P.W.22) in the mutation case, against the Appellants Guchun and Shivraj, who were the espousers of the cause of the rival claimants, the Appellant Bishwanath I and Janakraji. Others who made common cause against the victims were the redeemed mortgagees, Prahlad and Brijbhushan, and Bire as a brother of Bishwanath and Narbadeshwar as a brother of Guchun and Shivraj. Avadh Behari (P.W.22) has also stated that the three Appellants Palakdhari, Mahatam and Brijbhushan appeared as witnesses for the objectors in the mutation case. This mutation case had a prolonged career for, as stated by Avadh Bihari, it was still pending when he appeared as a witness in the Sessions Court on 8-9-1955.
6. The other motive has reference to alleged theft of a bullock belonging to Tikadhari about which he lodged a report (Ex. P1) on 8-9-1951. One Ramanuj was prosecuted and convicted for the theft but acquitted on appeal. The appellate court ordered restoration of the bullock to Ramanuj. Tikadhari thereupon filed a civil suit for declaration of his title to the animal and obtained an interim injunction so as to retain its possession pendente lite. This suit was still pending on the date of the present occurrence. In the criminal case preceding the civil, Tikadhari had expressed suspicion for the theft against the three Appellants Prahlad, Mahatam and Murti. The relevancy of this matter of theft of bullock, according to the prosecution, was, firstly, that Tikadhari was still in possession of the disputed bullock on the date of occurrence and, secondly, that he had made enemies of Prahlad, Manatam and Murti by casting suspicion on them for the theft.
7. The above two motives account, according to the prosecution, for almost all the Appellants being ranged against Tikadhari and members of his family. The remaining Appellants Ram Avadh, Deoki, Jiau, Jattan and Bishwanath II joined as their helpers and henchmen.
8. It was in this background that, according to the prosecution, the present occurrence took place at about 8.30 a.m. on 17-3-1953. Tikadhari''s threshing floor lay to the east of Madanpura. His son Suraj Narain P.W.1 and brother Ram Naresh P.W.12 had just brought arhar crop to the threshing-floor in a bullock cart. One of the pair of bullocks yoked to the cart was the disputed one referred to above. They saw a large crowd of about 100 men coming from the south armed with lathis and spears. Ram Naresh said that it was the gang of Shivraj Misir and asked Suraj Narain, a lad of about 19 at the time, to run away. Suraj Narain climbed a nearby mango tree. In the meantime, the gang of persons arrived at the threshing floor. The foremost among them were Shivraj, Guchun, Prahlad, Murti, Jatan and Mahatam, all armed with spears. Shivraj bade his companions kill Ram Naresh. Ram Naresh entreated them with folded hands to spare his lite, but to no avail, for Shivraj again exhorted his companions to kill him. As Ram Naresh started to flee, he received a spear blow in his back from Shivraj and fell down, and then others started beating him with lathis. At the bidding of Shivraj, the bullocks were unyoked from the cart by Bire and others. Ram Naresh raised an alarm. Hearing the alarm, his brothers Tikadhari, Ram Charan and Jaldhari, who were working in a brick-kiln 50 or 60 paces away to the west, came running and protested as to why they were assaulting Ram Naresh and unyoking the bullocks. Then Tikadhari, Ram Charan and Jaldhari were speared respectively by Guchun, Shivraj and Mahatam. Tikadhari died on the spot and Ram Charan''s intestines were protruding. All the three continued to be beaten even after they had fallen down. Shivraj then asked his companions to set fire to the threshing floor whereupon Bire and Bishwanath (it is not clear which of the two Bishwanaths) ignited with match-sticks the wheat crop in the threshing-floor. Thereafter the rioters left the place taking the two bullocks along with them. One of these bullocks came back the same evening and the other (which was the disputed bullock) was recovered on 13-4-1953 from the cattle pound of Garhi by S.I. Palakdhari Ram (P.W.18) on receipt of a communication Ex. P18 dated 11-4-1953 from S.I. Ram Adhin Singh (P.W.23) who investigated this case.
9. The occurrence was witnessed by Suraj Narain from the top of the mango tree and by a large number of persons who had collected there. After the rioters had gone, Suraj Narain climbed down and found that his father Tikadhari was dead and his uncles Ram Charan, Ram Naresh and Jaldhari, lay injured. Suraj Narain immediately left for the police station at Khajni, about 5 miles away, and lodged the first information report there at 10 a.m. the same day. It mentions the two-fold motive and details of the incident as given above. The number of rioters is mentioned as about 100 of whom 15 were named. Two of these, Durga and Sabhajeet were among those acquitted. The remaining 13 named in the report are the present Appellants except three, viz. Ram Avadh, Deoki and Bishwanath II. Some eye-witnesses were also named, and it was added that many others had witnessed the occurrence.
10. Preliminary investigation was made by head constable Dhuruv Tiwari, he being the officer who took down Suraj Narain''s report, and, on reaching the scene of the incident, despatched the dead body of Tikadhari and the two injured persons Ram Naresh P.W.12 and jaldhari P.W.13 to the hospital at Gorakhpur. As Ram Charan''s condition was serious, he had already been taken by some village people to the hospital at Sahjanwa before the arrival of the head constable. S.I. Ram Adhin Singh P.W.23 arrived at the scene of the occurrence at 4 p.m. the same day and took over the investigation. He recovered burnt ashes in the threshing floor and blood-stained earth at two places to the south-west of the threshing floor, as shown in the site plan Ex. P27 prepared by him.
11. Ram Charan''s injuries were examined at the hospital at Sahjanwa on 17-3-1953 by Dr. Bishwanath Prasad P.W.20. As the doctor found Ram Charan''s condition dangerous, and as no Magistrate was promptly available, he recorded the following dying declaration of Ram Charan at 12.10 o''clock in the day on 17-3-1953:
I, Ram Charan Upadhaya, son of Baldeo Upadhya, are the resident of Madanpura, police station Khajni. Prahlad, Mahatam and Murat-these three men-brought Guchun and Shivraj. They came with a crowd of about 40C men. We were carrying loads of Arhar to the threshing-floor. They unyoked our two bullocks from the bullock cart whereupon we, namely Tikadhari, Ram Naresh, Jaldhari and Ram Charan, asked them as to why they were taking away the bullocks. Thereupon they said that they would take them away, loot the grain and burr all the grain. Thereupon we stopped our bullocks. At this, Guchun, Shivraj, Mahatam, Prahlad and a number of men began to assault us with spears. My brother Tika died at the spot and I came to the hospital at Sahjanwa on a Charpoy. This is my statement. They burnt all the grain of mine. Among the men who assaulted me were Narbadeshwar and Shivpujan also.
12. After recording the dying declaration Dr. Bishwanath Prasad sent the injured person to the Suddar hospital at Gorakhpur. The duration since death given in the post-mortem conducted on Ram Charan''s dead body by Dr. D.N. Bhargava at 3-30 p.m. on 18-3-1953 indicates that Ram Charan died at about 3-30 p.m. on 17-3-1953. Dr. Bhargava conducted post-mortem on the dead body of Tikadhari the same afternoon. The injuries of Ram Naresh P.W.12 and Jaldhari P.W.13 were examined by Dr. K.K. Kaul in the district hospital on 18/19-3-1953, respectively. The injuries of these two survivors were simple but those or Tikadhari and Ram Charan proved fatal. The injuries on all the four appeared to have been caused with plunt, short-edged and sharp-penetrating weapons.
13. All the Appellants denied the prosecution allegations in their entirety and attributed their implication to enmity. Two of them, Guchun and Narbadeshwar, pleaded alibi, and evidence was led by the latter, but not by the former, in support of the plea.
14. The prosecution produced 11 witnesses as eye-witnesses of the occurrence, namely, (1) Suraj Narain P.W.1, (2) Chandrabali P.W.2, (3) Hira P.W.3, (4) Khun-khun P.W.4, (5) Mangal P.W.5, (6) Sheobaran Singh P.W.6, (7) Ambika Shukul P.W.7, (8) Jaldhari P.W.13, and (11) Rambahadur P.W.17. The prosecution also produced 3 witnesses of a circumstantial nature, who say that they saw the gang of men proceeding towards the deceased''s threshing-floor, and these were (1) Ramhit P.W.11, (2) Teja P.W.14 and (3) Brahmadutt Pandey.
15. The learned Sessions Judge acquitted 10 persons taking into consideration the circumstances that they had not been named in the first information report or the dying declaration and that the number of witnesses who deposed to having seen them participate in the offences was small. He was therefore of the view that the case against them was doubtful. The learned Judge rejected the defence evidence in support of Narbadeshwar''s alibi. He held all the aforesaid 14 prosecution witnesses to be natural and independent and the dying declaration of Ram Charan worthy of credence and he found corroboration for this evidence in the existence of the alleged motives and in the medical evidence. In the result, he held that the whole incident took place at 8 a.m. in broad day light, as alleged by the prosecution, and convicted and sentenced the Appellants as aforesaid.
16. The learned Sessions Judge rejected Narbadeshwar''s plea of alibi because in his view the evidence produced in support of the same "did not inspire confidence." The plea of this Appellant, taken at the earliest in the Court of the Committing Magistrate and elaborated in the Sessions Court, was that at the time of the alleged occurrence he was at Kanpur as an indoor patient in the Lala Lajpat Rai Memorial Hospital from 12 to 31-3-1953. In order to prove this plea he produced one Prabhakar Tripathi, with whom he is said to have stayed at Kanpur, Dr. Om Prakash Batra, the then medical officer in charge of the indoor ward in which he was accommodated, and a number of documents from the records of the hospital. There was firstly the out-door patient''s ticket No. 2022 Ex. 1 dated March, 11 relating to one Baba Narbadeshwar Das prescribing treatment for neuralgic pain and directing his admission as an indoor patient on March 12. Then there were, in respect of the same patient, the admission and discharge entries Exhibits D25 and D26 dated 12-3-1953 and 31-3-1953 respectively in the Indoor Patients Register, the bed head ticket Ex. D27 from 12 to 30-3-1953, the X-ray plates Exs. D23 to D30, and the discharge certificate Ex. D24 dated 31-3-1953 issued from the Discharge Certificate Book Ex.D31. Commenting adversely on the demeanour of Dr. Batra, which he characterised as "not very re-assuring" and "very nervous as a man with guilty conscience should have been", and only on two of the documents, viz., the discharge certificate and the indoor patients register, the former of which he described as suspicious and the latter as capable of being changed and replaced, the learned Seniors Judge disposed of the entire defence evidence as one which did not inspire confidence. He does not seem to have considered the other documents.
17. It should have struck him that there were a number of doctors who had a hand in the preparation of those documents. This was pre-eminently a fit case therefore in which he should have summoned those doctors in exercise of his power u/s 540, Code of Criminal Procedure, for a just decision of the case. He was not slow to exercise that power wherever there was any the slightest lacuna in the prosecution: he examined constable Shaukat Ali to prove a report by Bire Appellant and one Ram Palat to prove certain alleged applications of the same Appellant. The necessity for exercising that power was much greater in view of the aforesaid lacuna in the defence. It is manifest therefore that the standard of proof which the learned Judge applied in regard to the plea of alibi was rot the same which he applied to the prosecution evidence, which should be a reasonable standard in both cases, as observed by Fazl Ali J. in
18. The learned Judge was also treading on dangerous ground informing an opinion with regard to the credibility of Dr. Batra on his demeanour without due regard to the other evidence. An appellate court is slow to differ from trial court''s appraisal of oral evidence since the Judge presiding at the trial has the advantage of seeing and hearing the deponent in the witness box. But appraisal of oral evidence based merely on how a witness says a thing in disregard of what he or other witnesses or documents say or the circumstances of the case indicate amounts to judicial process turning into psychoanalysis. There is a passage appearing in this connection in a recent book by Dr. Clanville Williams, The Proof of Guilt, which is apposite:
In legal judgments, great stress is said on the advantage enjoyed by the Judge and jury who are able to study the witness while he is being examined. This is one reason for the orality of the legal proceeding, the theory being that the detection of falsehood or uncertainty is facilitated by seeing and hearing the witness give evidence, it is also one reason why the Court of Criminal appeal is reluctant to interfere with the verdict of the jury which has heard the witnesses. However, it is an exaggeration to suppose that a lie can be detected merely by observing the way in which the witness utters it for some liars are bold and some honest witnesses are hesitating and nervous.
19. The learned Judge should have put the witness''s testimony to the touch-stone of the documentary evidence. Should the documentary evidence have been found to be untrustworthy, it might have been open to the learned judge to reinforce that finding by a remark with regard to the impression which the demeanour of the witness may have created on him.
20. On account of this apparently unsatisfactory manner of the trial court''s treatment of the defence evidence in support of Narbadeshwar''s plea of alibi, it was considered necessary by this Court for a just decision of the case to recall Dr. Batra and to take additional evidence, which it did, for reasons recorded at the time when doing so, in exercise of the powers u/s 428 and 540, Code of Criminal Procedure. Fresh X-ray plates were also ordered to be taken in the Kamla Nehru Memorial Hospital at Allahabad with the consent of the Appellant and his learned Counsel. The following additional evidence was taken.
21. Mahesh Chand, Head Clerk of Lala Lajpat Rai Memorial Hospital, brought the out-door patients'' register and showed the relevant entry in it dated 11-3-1953 with regard to Narbadeshwar Das, but he was unable to prove it as he could not say in whose handwriting it was. He proved the receipt Ex. C from the counterfoil book of receipts Ex. B in respect of the fee paid by the Appellant when he took the discharge certificate Ex. D24, the receipt being in his writing. Another witness examined was Dr. Ved Ratan who was at the relevant time the Registrar of the said hospital. As such he made entries in the indoor patients'' register with the help of bed-head tickets both at the time of admission and discharge. He proved the aforesaid admission and discharge entries Ex. D25 and D26 in this register as having been made by his clerk in the regular course of the business of the hospital. He signed entries in this register every day and checked them up from the bed-head tickets in the course of his rounds. The register is not paged, but the witness successfully repudiated the suggestion that the register could for that reason be tampered with by stating that the pages could not be changed as he signed he register every day.
22. Dr. Batra was recalled and he deposed, with reference to the entries made by him in the bed-head ticket Ex. D27, that Narbadeshwar Das cams to him with the chit Ex. 1 from the out-door patients'' department and was admitted as an in-door patient on 12-3-1993. The patient complained of pain in the lumbar region and for that he was X-rayed thrice, once on 16-3-1953 and twice on 20-3-1953. He also got his urine tested, the urine report being on the slip Ex. III. Dr. Jagdish Chandra, who was then incharge of the X-ray department in the hospital at Kanpur, was also summoned. Be made notes of his readings of the three X''-ray exposures in the bed-head tickets. His reading of the skiagram taken on 16-3-1953 was that the acetabular margin showed irregular bony outline and osteoporasis, and he suspected it to be a case of T.B. of the hip. This reading is dated 17-3-1953. On 18-3-1953 Dr. Batra made a note directing the Radiologist to take a skiagram of he lumbar region A.P. and lateral view, which Dr. Chandra did on 20-3-1953 by giving two exposures. The two skiagrams taken on that date bear number 898 and 899. He made a note of his reading of these X-ray plates and it was to the effect that osteoarthritic changes were present in the lower lumbar vertebrate. These vertebrae were marked in the plate No. 899 by means of red arrows and Dr. Chandra stated that they were bone outgrowths in the fourth and fifth lumbar vertebrae. He stated further that, if a fresh X''-ray of the man be taken, these changes may or may not be present, and that, in case they are present, it may assist in determining the identity of the person, but if they are not present there would be difficulty. Dr. Chandra also proved relevant entries Exs. E and F regarding the three exposures in the X''-ray register Ex. D. Dr. Batra deposed that after the X-rays taken on 20-3-1953 he came to the conclusion that the malady from which the patient was suffering was neither T.B. nor anything serious, and that thereafter the patient was given diathermy treatment. There are notes in the bed-head ticket by Dr. Batra about this treatment from the 22nd to the 27th March, 1953. The last entry in the ticket is dated 30-3-1953, and on 31-3-1953 he was given a discharge certificate.
23. Now, judged by any reasonable standard, it is not possible to cast a shadow of doubt on all this oral and documentary evidence. The references and cross-references in the documents, and the number of doctors and other employees of the hospital involved, rendered fabrication and falsification highly improbable, if not impossible. There can be no doubt therefore that a man of the name of Narbadeshwar Das was an inpatient in the hospital at Kanpur from March 12 to 31, 1953. Only two loop-holes were possible in this defence structure of alibi either the entries in the records of the hospital relate to some other namesake of the Appellant Narbadeshwar and they were unearthed after ransacking the records and utilised for purposes of this case, or the entries did relate to the Appellant but in spite of them he was able to make himself scarce from the hospital for a sufficiently long time and perpetrate the crimes for which he has been convicted. It does not however seem to be possible to subscribe to either of these possibilities.
24. The first suggestion presupposes a degree of prescience and preparation with which it is difficult to credit a man in the position of the Appellant or his helpers. It also presupposes a conglomeration of circumstances -a namesake of the Appellant being an in-patient in the hospital at Kanpur, and that at the crucial time when the present offences were committed-which is too farfetched. Weighty as these considerations against the suggestion in question are, it could well be said that they are only conjectural. There is however direct evidence on the record which positively rules out the suggestion. Firstly there appears an endorsement in Hindi dated 18-3-1953 on the bed-head ticket in the handwriting of the Appellant Narbadeshwar and bearing his signature. As a note in the bedhead ticket shows, Dr. Batra enjoined a bowel wash when he directed on 18-3-1953 the skiagram of the lumbar region to be taken. The Appellant''s endorsement was made at 10 p.m. the same day refusing to take enema or bowel wash. When examined in this Court after the recording of the aforesaid additional evidence, the Appellant explained that he made the endorsement at the instance of the nurse-incharge. Evidently the nurse took the writing to escape responsibility for non-compliance with the doctor''s directions. This was followed by a note in red ink addressed by Dr. J. Chandra, the Radiologist, to the sister-in-charge that bowel wash had not been done and directing her to send the patient for X''-ray after getting it done. The Appellant has stated that he never took enema but his bowels were relieved by the administration of some whitish looking medicine. Thereafter the two X''-rays were taken on 20-3-1953. As there is no reason to imagine complicity of Doctors Batra and Chandra in a conspiracy to fabricate the alibi evidence, the endorsement in Hindi should be accepted as a genuine one made by the Appellant. There is yet another piece of evidence which fixes the indentity of the Appellant. After the aforesaid opinion of Dr. J. Chandra as regards the possibility of fixing the identity of the Appellant, two skiagrams Exhibits G and H of the lumbar vertebrae of the Appellant were ordered to be taken by Major M.K. De, the Radiologist in the Kamla Nehru Memorial Hospital at Allahabad, and he submitted his reading Exhibit J. His reading was that there were osteo-arthritic changes in the 4th and 5th lumbar vertebrae. It will be noticed that these were the very characteristics that had been noticed by Dr J. Chandra in his reading of the skiagrams which had been taken in the hospital at Kanpur on-20-3-1953. On a comparison of the skiagrams taken by him with those which had been taken by Dr. J. Chandra it was stated by Major De that as the changes in both the skiagrams were similar it was possible that the two sets of skiagrams belonged to the same person. This opinion also tallied with the opinion of Dr. J. Chandra. Lastly, Dr. Batra identified the Appellant as the Narbadeshwar Das who was an in-patient in the hospital of Kanpur from March 12 to 31 in 1953. All this evidence rules out conclusively the suggestion that the Narbadeshwar Das who was an in-patient in the hospital at Kanpur from March 12 to 31 in 1953 was some person other than the Appellant.
25. As regards the other suggestion, that after having got himself admitted in the hospital Narbadeshwar Das slunk away in time to commit the offences in the forenoon of 17-3-1953 and then came back, stress was laid on the fact that while the bed-head ticket did show that the Appellant was present in the hospital on 16-3-1953, when he was X-rayed for the first time, and on the night of 18-3-1953, when he made the aforesaid endorsement in Hindi there was no entry or endorsement dated 17-3-1953 indicating his presence in the hospital on that date. The prosecution did not however come forward with such a suggestion either when the Appellant was being examined u/s 342, Code of Criminal Procedure, or at any previous stage, to enable him. to offer an explanation in respect of this incriminating suggestion. There is nothing to suggest that he would not have been able to offer an acceptable explanation. To take this circumstance into consideration against the Appellant without affording him the opportunity which was his due of offering an explanation in respect of the same will therefore be prejudicial to his interests. That being so, the suggestion must be ruled out of consideration. The suggestion must also be ruled out as unworthy of acceptance since Dr. Batra has stated that he used to go on his routine rounds at least twice a day. Should the Appellant have left the hospital, his absence could not therefore have failed to be noticed by Dr. Batra, and in that case he would have noted the fact in the bedhead ticket. There is no loop-hole in the defence evidence of Narbadeshwar''s alibi, and it should in consequence be held that this Appellant was not present at the place where, and at the time when, the occurrence took place. He is therefore entitled to a clear acquittal.
26. How far does this finding affect the rest of the case? That is the important question that falls for consideration next. The finding affects adversely the testimony of those who have named Narbadeshwar as one of the rioters. That means the testimony of the 7 eye-witnesses Suraj Narain (P.W.1), Hira (P.W.3), Sheobaran Singh (P.W.6), Ambika Shukul (P.W.7), Ram Naresh (P.W.12), Jaldhari (P.W.13) and Ram Bahadur (P.W.17). That means also the testimony of the dying declaration of Ram Charan. It appears that truth did not sit on the lips of this dying man for he tacked on to his dying declaration the name of this Appellant and that of Sheopujan at the end, as if by way of an after-thought. Late in the course of the trial the prosecution attempted through the witness Brahmadutt Pande to show that this Sheopujan was not Sheopujan brother of Narbadeshwar but one Sheopujan Barai. That was however patently a made-up statement in view of the ignorance betrayed by this witness in cross-examination relating to Sheopujan Barai and his kith. From this circumstance itself and also from the juxtaposition of the two names in the dying declaration, it is legitimate to infer that the Sheopujan named by Ram Charan was none else than the brother of Narbadeshwar. The defence has however again proved conclusively from the evidence of Dr. K.K. Kaul that Sheopujan, brother of Narbadeshwar, was operated upon for hydrocele on 14-3-1953 and was on that account an indoor patient in the district hospital of Gorakhpur from that date until 20-3-1953. He that toucheth pitch shall be defiled, says the Bible. The question is whether the undouted falsehood attaching to the testimony of the aforesaid seven prosecution witnesses and Ram Charan''s dying declaration due to those witnesses and Ram Charan''s having named Narbadeshwar and his brother Sheopujan defiles that testimony completely. Is this part of the prosecution evidence to be rejected on bloc or only against Narbadeshwar ? The question further is whether the residuary prosecution evidence remains unaffected by the defilement ?
27. An answer to the first of these two questions may at this stage be attempted, postponing the determination of the other question until after it is possible to say what actually the residuary prosecution evidence is. Now, it may well be said that those who have named Narbadeshwar falsely may yet have named the other a Appellants truly inasmuch as, generally speaking, there is in this work-a-day world no such thing as a wholly truthful or a wholly untruthful witness. But there should be some reasonable basis for a sifting of evidence of such witnesses. It should be possible not only to find some acceptable reason for their implicating Narbadeshwar and not the others but, since a part of their testimony has been found to be undoubtedly untrue, there should, in addition, be some special reason to compel belief in their veracity when they name the others. No basis, let alone reasonable basis, for such sifting of evidence exists in the case of the aforesaid seven eye witnesses or Ram Charan. It is not possible to find any reason which could be said to have impelled them to name Narbadeshwar but not to have weighed with them when they named the other Appellants. What being so, the question of the reason for their naming the other being such as compels belief does not arise. The answer to the first question posed at the end of the next preceding paragraph has therefore to be that the seven witnesses who have named Narbadeshwar and the dying declaration of Ram Charan should be rejected on bloc.
Of the remaining 7 witnesses the testimony of the three witnesses of a circumstantial nature, viz., Rambir P.W.11, Tejai P.W.14 and Brahmadutt Pandey P.W.16, who profess to have seen the gang proceeding towards the scene of the occurrence, does not also appear to be reliable since all the three have named Sheopujan (who, as seen already, was not there) and one of them, Ramhit, names Narbadeshwar as well. Thus, we are left with the testimony of four eye-witnesses, beside; some evidence of a circumstantial nature, to judge the case of Appellants other than Narbadeshwar. These four witnesses are Chandrabali P.W.2, Khunkhun P.W.4, Mangal P.W.5 and Jokhu P.W.8.
28. Two of the Appellants, Jatan and Jiau, have been named by the prosecution witnesses whose testimony has had to be discarded, and none of the residuary witnesses name them. Three of the Appellants were named neither in the first information report nor in the dying declaration, namely, Ram Avadh, Deoki and Bishwanath II. Omission of Deoki is particularly significant since he is a resident of the same village as the victims. Ram Avadh is also not named by any of the residuary witnesses. It has also been noticed, while setting forth the prosecution case relating to motives, that these five Appellants could not be connected with either of the two motives suggested. The prosecution had therefore to come forward with the allegation that they were the helpers and henchmen of the other Appellants. This is however only a vague allegation and even that is not unsupported by any specific evidence of a satisfactory character. For these reasons the five Appellants Ram Avadh, Deoki, Jiau, Jatan and Bishwanath II must also be acquitted along with Narbadeshwar.
29. The process of elimination must needs go further. The testimony of only two of the four residuary witnesses is available against the three Appellants Ram Nawal, Mahatam and Brij Bhushan as the other two have either not named the Appellants or they are inimical to them. Of the two of the residuary witnesses available against them one, Jokhu, was not named in the first information report although he is a resident of the same village as the informant, and his threshing floor is said to be adjacent to the threshing floor of the informant. In the absence of any explanation for the omission, it will be unsafe to rely upon the testimony of this witness. Thus, the testimony of only one of the four residuary witnesses is left against these three Appellants, which appears to be quite insufficient in a case like the present where the occurrence took place in broad day light and was seen by a large number of persons. These three Appellants, Ram Nawal, Mahatam and Brij Bhushan, should also therefore be acquitted.
30. Thus, we are left with the 7 Appellants Guchun, Sheoraj, Palakdhari, Bire alias Birbal, Bishwanath I, Prahlad and Murti and the three witnesses Chandrabali P.W.2, Khunkhun P.W.4 and Mangal P.W.5 (for the fourth Jokhu P.W.8 has had to be eliminated for reasons given in the next preceding paragraph). Is this residuary evidence of 3 eye-witnesses and the circumstantial evidence of motive sufficient to warrant maintenance of conviction of these seven Appellants? Leaving aside the evidence of motive for the present, the points favouring this question being answered in the affirmative are the following: (1) none of these 3 witnesses named Narbadeshwar, (2; that they had their khaliyan or house close to the place of occurrence and (3) that they were named in the first information report. The last-named point should really be discarded since the report was the handiwork of a witness, Suraj Narain P.W.1, who had named Narbadeshwar falsely therein. On the other hand, the points favouring the question being answered in the negative are the following: (1) each of these 3 witnesses was inimical to some one or the other of the accused, so that, if the accused formed a gang (as is the case for the prosecution), these witnesses could be inimical to the other accused as well; (2) two of these witnesses Khunkhun and Mangal, appear to be friends of Jaldhari deceased-a material circumstance in a case of rioting which was the result of two hostile groups being ranged against each other, and(3) all of them improve upon the version given out by them in their statements u/s 164, Code of Criminal Procedure, in material particulars.
31. It would thus appear that the points against these 3 residuary eye-witnesses are of more than countervailing weight as compared to the solitary points in their favour, that solitary point being only this that their khaliyan or house was close to the place of occurrence. It would thus appear that the testimony of the 3 residuary eye-witnesses also goes by the board, and that on their own demerit. Eye-witness evidence against the aforesaid remaining seven Appellants comes therefore to nil. Even if there were no apparent residuary witnesses, it would not have been safe to maintain the conviction of any of the accused in a case like the present where there were clear indications of an attempt to rope in innocent persons. And it is important to note that this nefarious attempt was manifest even in the first information report and the dying declaration of Ram Charan, so that the prosecution was rotten at the core. That being the state of affairs in the present case, mere existence of motive would not be of any value since that might well have been the cause of false implication. In point of fact, the two motives seem to have been joined artificially in furtherance of the aforesaid attempt of roping in innocent persons.
32. The inevitable result of the above findings is that all the Appellants have to be acquitted. Now, this is certainly a most unfortunate result since two men were killed in broad day light by rioters armed with deadly weapons, and those rioters were most probably among the persons prosecuted in this case. But this is again one of those cases in which justice has been baulked as a result of the not uncommon tendency among complainants to clutch at the commission of a crime as an opportunity for implicating the innocent along with the guilty. What was all the more unfortunate in the present case is that the investigating agency appears clearly to have aided and abetted false implication by the complainant because proof of alibi of Narbadeshwar lay on the surface if only the investigating agency had cared to look at it.
33. How one wishes that the enormity of the evil of acquit all of guilty were realised by the grasping complainant of the irresponsible investigator. The evil goes much deeper than the bare fact that a guilty person has not been brought to book since if unmerited acquittals increase they tend to bring law and order into jeopardy. As remarked by Viscount Simon in Stirland (1944) A.G. 315 (at 324),"a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent."
34. The appeals must therefore be, and they hereby are allowed in toto, and the convictions and sentences of the Appellants on all the charges are set aside and they are acquitted. The reference for confirmation of the sentences of death passed on Guchun and Shivraj is rejected. All the Appellants shall be set at liberty forthwith unless detention of any of them is required in connection with any other offence.
