Authored By : Harry Lushington Stephen, Digamber Chatterjee,Herbert Carnduff

Harry Lushington Stephen, J.

1. Autar Singh, Mahadeo Mali Mahadeo, Sonar, Girja Lal,Balsingar Sonar and Mahadeo Kahar have been convicted of murder by the SessionsJudge of Sahabad, and the case comes before us on appeal and on it submissionfor confirmation of the sentence.

2. The deceased man was Basdeo Narayan and he was killed onthe road from Darigaon to Sassiram on the morning of Monday the 25th of March.

3. The case for the prosecution rests chiefly on twowitnesses, Brij Lochan Sahai and Musammat Samaria, and is as follows:--

On the day mentioned, two of the accused, Girja Lal andMahadeo Mali, were to make their defence to a charge of giving false evidenceunder section 193 of the Penal Code brought by the deceased; and the other fourappellants before an were their witnesses. The trial was to take place atSessiram, which is about eight miles from Darigaon, where the deceased lived,and through which the accused had to pass to go to Sessiram. The sun rose thatday at about six by standard time, and at Darigaon, consequently, a littlebefore sir standard time, and before dawn, the six appellants were seen passingthrough Darigaon on their way to Sassiram. A little later at a time describedas that morning at sunrise at 7", they were seen at Kasarwa some mileson their way. At seven or half past, Brij Lochan and the deceased came out ofthe Kutchery of the latter at Darigaon in order to bicycle to Sassiram as theyhad arranged to do the night before. As they were mounting their bicycles, thedeceased remembered a paper which he said he should want in Court, and sentBrij Lochan back to get it. The deceased bicycled on alone riding slowly so asto let Brij Lochan catch him up. When he arrived opposite the Katchery atKasarwa, he spoke to Ramdhon Singh telling him that he was going to Sassiram inGirja Lals case, and leaving a message for Brij Lochan that he was to come onquickly; he also passed other witnesses but did not speak to them. At what musthave been a short time afterwards, Brij Lochan, following the deceased, came toKasarwa and received the message of the deceased from Ramdhon. Further on, hecaught sight of the deceased himself same way ten rossis ahead of him, andafterwards passed Sheo Lochan Singh Daffardar, Kesho and Dewan Singh servantsof the deceased going together to Sassiram. Soon afterwards he saw the bicycleof the deceased on the road, and looking up saw the deceased on his back sixtyor seventy paces further on: all the appellants were holding him down andMahadeo Mali was cutting his throat, and called oat dah dah; Mahadeo Kahar ranat him with his kanta and he got on his bicycle and rode away. He met SheoLochan Singh and the two other witnesses with him running towards him, and toldthem what was happening, on which they ran on more quickly, He looked back at acertain point, and saw the appellants running away into the jungle east of theroad: Sheo Lochan running after them, and Kesho and Bewa Besa running ontowards the corpse. Farther, along the road he met Bhim Singh and Seo LochanBind to whom he spoke. In Kasarwa he met Ram Janata Tewari to whom he told whathad happened also telling him to inform Ramdhon. Near the Kutchery at Darigaon,he met Ram Jauam whom he sent to tell the father and brother of the deceasedwhat had happened: he stayed a little at the Kutchery, then bicycled back tothe place where the corpse was," went on to Sassiram where he found thatRamdhons information had been recorded and was being read over to him and thenhad his own information recorded. He said that the accused would probably be atthe thana, where they were accordingly arrested. He seems to have been at thethana between eleven and twelve.

4. The most important parts of this story are derived fromBrij Lochans evidence and it is to be noticed that it offers a good manypoints where corroboration might be expected, and that corroboration isforthcoming at all of them. Thus we have the kind of evidence from Ramdhon,Sheo Lochan, Kesho Bewan, Ram Janara and Ghumon Dusadh that we might expect ifBrij Lochas story is true, and as far as their depositions go, there does notappear to me to be any particular reason for distrusting these witnesses.

5. In this view, I differ from the Judge in the Court below,but his reasons for disbelieving Brij Lochan, Sheo Lochan, Kesho and Bewa apartfrom considerations founded on Ramdhons information, which I will considerlater, seem to me to be founded on inferences for which Micro in no foundationin the evidence.

6. The other principal witness relied on by the prosecutionis Musammat Samaria. This woman was a labourer living in Sahahi South ofDarigaon and on the day of the murder had gone to Lerua to buy a goat, and wasreturning south wards along the road where the murder took place. She saw thedeceased coming along on his bicycle when all the appellants attacked him, andshe saw them holding him down. She hid under a bridge and heard some one crydahi dahi. A long time after she left the bridge and went to the west along afootpath, telling people she met, that a Babu had been murdered and telling hermother when she arrived home, that Autar and Mahadeo Mali and others she didnot know, had committed the murder. She is corroborated in this story by hermother and by Sahdeo to whom she says she told what she had seen. Sahdeo,however, has been disbelieved on this point by the Judge and I see no need fornot accepting this view. But I also agree with him in accepting Samarias storyas it stands. Questions have been raised by the defence as to the truth of herstory that she went to Lerna to buy a goat; and as the record stands there areseveral questions as to this which may be more easily asked than answered. Thismatter, however, only goes to her general credit, and as nothing to injure itis disclosed in the questions that were put to her in cross-examination, Icannot assume that she would have been unable to answer satisfactorilyquestions that were not put to her. An argument has also been addressed to us,based on the positions assigned by the witness to the deceased and hisassailants, which seems to me unsound in itself and also to attach too muchimportance to statements, which, though they look definite enough in therecord, are in fact only her recollection of a confused struggle veryimperfectly observed. On the whole, Samarias evidence seems to me a fairstatement of something that she actually observed and, no doubt, seems to havebeen cast on her identification of the various appellants which is an essentialpart of her evidence.

7. This is the main evidence on which the prosecution reliesto establish the guilt of the accused, and in view of the course of thearguments urged before us on behalf of the appellant, I need only say that amotive for the murder on the part of all the accused has been provedsatisfactorily, though at much too great length with an accompanying waste oftime and printing, and that the evidence of the movements of the accused after themurder cannot add to the force of the evidence of Brij Lochan and Samaria if itis believed, and cannot prove the case if it is not.

8. The evidence of these two witnesses in fact conclusive ifit is believed, and if it is not believed a conviction is difficult if notimpossible. The Judge has indeed disbelieved Brij Lochans evidence and reliedfor a conviction on that of Samaria, but this is a course which I should beunwilling to follow, as if Brij Lochan, and most of the witnesses who supporthim have been corrupted. I should find it difficult not to doubt Samaria.

9. I will, therefore, consider as fully as I can the groundsfor doubting the truth of Brij Lochans story relied on by the Judge, andmentioned in argument on behalf of the defence before us.

10. The conclusion which these grounds are said to establishis that Brij Lochan followed the deceased at a much longer interval than hesays occurred, and that he arrived at the place of the murder after it had beencommitted and too late to see any of the murderers. In these circumstances, hecaused Ramdhons information to be fraudulently altered after it was made so asto make it consistent with the story he wished to tell and we must suppose thathe corrupted the three witnesses Seo Lochan, Kesho and Dewan.

11. The grounds themselves are as follows:--It is certainthat Ramdhon arrived at the thana and gave an information of the commission ofthe murder before Brij Lochan came; but the latter came either while theinformation was being given or just after it had been recorded; it really doesnot matter which. The information as recorded contains corrections: One ofthese consists of the substitution of phanran immediately, for adha gantahalf an hour, which shows that Ramdhon first said that Brij Lochan followedthe deceased at the interval of half an hour, and then said that he followedhim immediately. Ramdhon in cross-examination says that he did not say adhaganta, though he admitted that he might have said it. Altaf Hossain, who tookdown his statement, says that the correction was made as soon as he had writtenadha ganta. Gurdeo Singh, an Honorary Magistrate, says that the correction inquestion was not in the information when he signed it, which he did when it wascompleted. Mozafar Khan, another Honorary Magistrate, seems to support AltafHossain as to how the correction as adha ghanta was made and contradicts Gurdeoas to the existence of erasures. The information was written in four-fold, bymeans of carbon papers. One copy was kept in the thana and the two others weresent to the Superintendent and Inspector, and one was retained by theSub-Inspector. On these facts and on the appearance of Exhibit 2, the originalcopy written by the Sub-Inspector, and Exhibits 2a and 2b, two of the carbonpapers, it is suggested that the alteration of adha ghanta into phauran wasprocured after the papers were separated. The separation of the papers Exhibits2, 2a and 2b, after they were written, was definitely stated before us as beingthe appellants case; and the supposition that the alteration was fraudulentlyprocured before the papers were separated would make it necessary to supposethat Brij Lochan went to the thana with a false case ready in his mind,perceived that the statement that he followed the deceased at an interval ofhalf an hour was inconsistent with it and procured its alteration in the thanain the presence of the Police, two Honorary Magistrates, one of whom deniesthat any alteration was made.

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12. The case that a fraudulent alteration was made in thethana was also never put to any of the witnesses in cross-examination.

13. This brings me to the appearance of Exhibits 2, 2a and2b, and in the first place it seems to be clear that the alterations inquestion, like other alterations in the documents, were made before the paperswere separated. The alterations appear to be made in all three copies in thesame medium as the corrected word is made in, i.e., in blue pencil in Exhibit 2and carbon paper in Exhibits 2a and 2b. The erasure in all these Exhibits ismade by a jagged line which seems to me to be exactly similar in all threecopies. These two facts seem to me conclusive to show that the correction inquestion was made while the papers were one under the other in the thana,either while Exhibit 2 was being written, or, as is shown by the evidence as towhat was done with the different copies after they, were made immediatelyafterwards. In either case, I see no reason for supposing that the correctionwas made for any other reason than because it represented the truth. It hasbeen argued that in Exhibits 2 and 2a the line erasing adha ganta passescorrectly through those words and that in Exhibit 2b it passes above them; thatthere are other slight differences between the appearance of letters in Exhibit2b and the other two Exhibits, and particularly that while the distance betweenall the lines except the first and second in Exhibit 2b, corresponds with thesame distance in other Exhibits, the distances between the first and secondline in Exhibit 2b do not so correspond. These matters seem to be to indicatethat the arrangements for taking carbon copies of Exhibit 2 were not ofperfectly accurate kind, and to offer no indication at all of a fraudulentorigin for the correction. I cannot follow out the detail of the argumentsaddressed to us in this matter; but I have no doubt as to their effect.

14. Another correction made at an earlier part of Ramdhonsinformation has also been noticed by the appellants as a matter throwingsuspicion on the case for the prosecution. The message that Brij Lochan saysthat the deceased left with him was, as the translation now stands, "TellBrij Lochan Sahai, should he happen to come, to go immediately." Thesuggestion is that the words Girja Lal and" should be inserted before BrijLochan. The Sub Inspector says he wrote Brij Lal and then erased this, andwrote Brij Lochan. The erased words, however, appear as I am informed certainlyto be Girija Lal; and the suggestion is that this shows that Brij Lochan was towait for Girija Lal, one of the appellants, to come to Sassiram with him andthat his story of being ready to start with the deceased is false. I cannottake this view of the effect of the erasure. In the first place, it is using Ramdhonsinformation to contradict Brij Lochan which is not according to law. In thesecond, if Ramdhon was understood by the Sub-Inspector to name Girija Lal, I amnot sure that he did so. In the third, I do not read the evidence on the recordas showing that there was any idea of Girija Lal coming to Sassiram with BrijLochan. I, therefore, consider that the erasure of Girija Lals name onlyindicates a mistake on the part of Ramdhon or the Sub-Inspector. It may beobserved that no suggestion has been made before us that three Exhibits showany traces of this erasure having been made at different times in the threecopies. They seem to me to correspond exactly in structure, and in each case tobe made in the same medium as the rest of the documents they are contained in.

15. On these grounds, I am of opinion that there is nothingin Ramdhons information that contradicts him to such an extent as to cause meto suppose that the prosecution case may have been concocted. I consider thatthe Judge was mistaken, in the conclusion he drew from the erasure of adhaganta, that he failed to remember the grounds on which a witness recordedinformation may be received in evidence, and made the grave mistake of treatingthe information of a witness as-substantive evidence.

16. Further, I consider that the Judge has shown awillingness to attach a far more definite meaning to popular measures of timethan they are entitled to:

17. Under these circumstances, I am of opinion that there isnothing in the information of Ramdhon that throws any doubt on the correctnessof the story told by him, or going outside the law applicable to the case, anyone else.

18. Another matter was referred to, which it was suggestedthrew doubt on the good faith of the prosecution. The Sub-Inspector in the caseexamined Samaria on the evening of the day of the murder. He recorded herevidence in his diary, which was produced in Court, I presume, under section171, Criminal Procedure Code., The entry relating to Samaria did not help theaccused; but it was suggested that there was delay in sending the diary to itsproper destination which indicated mal-practices on the part of the Police.Evidence exists on the record to show that the diary was dealt with in theusual course, and there is nothing about it to impeach Samarias credit.

19. I ought perhaps to add that I can place no reliance onthe evidence of Babu Gurdeo Singh. He says that he arrived at the thana a fewminutes after. Brij Lochan and while the passage about adha ganta was being read;Ramdhon was specially asked about the expression, and repeated it; when hesigned the information after it was finished, the erasure, Exhibit C, thatrelating to adha ganta was not on it, nor was Exhibit 2b about, which noquestion has been raised. This is contrary to the evidence of the Sub-Inspectorand Abu Mozafar Khan who also signed the information and speaks positively tothe existence of erasures: This witness supports Gurdeo Singh on the point ofthe time when he arrived at the thana: but makes no reference to Brij Lochanspresence. Brij Lochan, the Inspector and the Sub-Inspector have not been askedabout Gurdeos presence. Under these circumstances, I cannot trust his evidenceas it stands while the result of his cross-examination and other evidence onthe record seems to arouse considerable suspicions of his honesty.

20. The result of the most careful attention that, differingas I do from my learned brother and the Judge, I have given to the effect ofRamdhons information as it stands, is that I find in it nothing to cause me tosuspect the stories told by Brij Lochan and Samaria. Looking to the storiesthemselves and the corroboration that they have received, I have, therefore, nochoice but to accept them. This being so, such of the evidence as I have notnoticed becomes superfluous, since the alibi is too weak to have much weight byitself, and the case against the appellants could not, as it seems to me, bemore clearly proved than it is by the evidence of eye-witnesses.

21. I think, therefore, that the appeal should be dismissedand the sentence of death confirmed.

Digamber Chatterjee, J.

22. This is a capital sentence case referred to us forconfirmation under section 374, Criminal Procedure Code. There is also anappeal by the accused persons. Eight persons were accused of the murder of oneBabu Basdeo Narain Singh. The Assessors found the case proved against all ofthem. The learned Sessions Judge acquitted two and convicted the rest. In sodoing, he disbelieved the evidence of the principal eye-witnesses and based hisorder upon the evidence of a woman named Samaria and the evidence of personswho are said to have seen the accused before and after the occurrence.

23. The decision of this case will depend mainly uponwhether we believe the eye-witnesses, for the other evidence could not be usedotherwise than as more or less corroborative. The evidence of enmity also fallsinto the latter class. It is proved and in fact it is not disputed that theaccused persons have been at loggerheads with the deceased and his family forsome time and it is not denied that the deceased was a tyrant and harassed andoppressed his tenants in various ways. The accused, therefore, might have amotive for a conspiracy to remove him from the scene. Accused Girja Lal andMahadeo Mali had cases under section 193, Indian Penal Code, pending againstthem and fixed for the 25th of March 1912 (the date of occurrence) and thedeceased was vigorously supporting the prosecution and both parties would begoing to Sassiram on that day and from the same place. It is said that theaccused went first and hid themselves in the jungle and attacked and murderedthe deceased when he was passing by that way on his bicycle. As regards theactual murder, we have not to depend upon any circumstantial evidence in thiscase. Witnesses have been examined who say they saw the murder with their owneyes. If these witnesses are believed, the case is made out; if they are notbelieved, all the other evidence is of no use.

24. The learned Judge has disbelieved the principaleye-witnesses and if we agree with him, it would be extremely unsafe to rely onthe testimony of the woman Samaria and support the conviction on its basis.

25. Of the eye-witnesses, Brij Lochan Sahai, the servant ofthe deceased, is the central figure and the case will stand or fall accordingas he is believed or not. The learned Judge has disbelieved him especially oncertain considerations as to the time at which he reached Karsarwa Chhowni,based upon the cancelled statement of Ramdhon in the first information thatBrij Lochan came half an hour after Basdeo had left. The learned Judge thinksthat the word phauran (at once) was written immediately after the word adhaghanta had been cancelled and whilst the writing of the first information wasgoing on and not subsequently at the suggestion of Brij Lochan according to thedefence theory: but that the very fact of the first mention of adha ghantashows that that was the correct time. The interval between the time when Basdeoleft the Karsarwa Chhowni and the time when Brij Lochan followed from thatplace is extremely important for if the interval was half an hour, Brij Lochancould not have witnessed the occurrence. I have carefully examined the firstinformation and the carbon copies. The word adha ghanta in the original pencilcopy, Exhibit 2(2a), has been completely cancelled by two zigzag lines so as tomake the same illegible: it is the same with carbon copy, Exhibit 2a. In thecarbon copy 2b, however, which is on plain white paper, the cancelling linesare so much above the writing as to leave the same quite readable. It isreasonable to suppose, as the learned Judge has done, that the loose sheetslipped down a little at the time of the cancellation, But if it slipped downat the time of the cancellation it must have been re-placed in its formerposition at once, for otherwise the next line would be at the same distancefrom the cancelling line in the original as in the carbon copy, Exhibit 2b. Thesecond line and all the other lines however are at the same distance from thecancelling line in the original as in the carbon copy whereas in the latter,the cancelling line is at a greater distance from the second line and otherlines and this is quite clear if the Exhibits are superposed and held againstthe light. The inference is inevitable that the cancellation took place afterthe whole document had been written. The other alternative of the slippinghaving taken place only at the time of the cancellation and corrected at onceis hardly possible as it seems extremely difficult to make all parts coincideafter a loose sheet has once slipped from its position.

26. Then the added word phauran is hardly visible in theoriginal: it is clear in the carbon copies and the word is quite differentlywritten in the two copies: the two strokes of au in Exhibit 2a are quite closewhilst those in Exhibit 2b are double as much apart: one of the said strokes inExhibit 2b runs over(r) whilst in Exhibit 2a it just falls short of (r): thereis a difference in the shape of the letter pha also. I do not see how thiscould have taken place if the same writing on the original produced these twocopies. I do not, however, lay much stress on this as these discrepancies inthe formation of the word phauran were not brought to the notice of the writerwhen he was cross-examined.. The learned Judge has remarked that if the writerhad ended the line after adha ghanta, a much longer space would be left to theend of the paper to the right than has been left in the other lines. I find,however, that similar lengths of space were left in the original Exhibit 2 inlines 13, 25, 27 and 36. As regards the dash at the end of the line, there issuch a dash after adha ghanta and none after phauran. If the correction hadbeen made immediately, there was nothing to prevent the word phauran beingwritten in the next line. I cannot, therefore, avoid thinking that the wordadha ghanta was cancelled and the word phauran written after at least thegreater part of the second page if not the whole had been written. The word hialso after the word had appears to have been written subsequently to emphasizethe word phauran. Here also the plain paper copy, Exhibit 2b, comes to supportthis view and the evidence of Altaf Hossain that he wrote hi before he wroteadha ghanta is not at all probable. As regards the signature of Gurdeo Singh onExhibit 2, it must have been taken after the sheet had been torn off from thebook and re-placed higher on the other sheets had slipped down. This, however,does not necessarily show that the adha ghanta correction was made before hissignature. Even Inspector, Kalilal P.W. No. 53, says:--"Upon reading thefirst information, I did not notice whether there was any cutting or not"and it is quite possible that Gurdeo Singh did not notice any especially as hedid not read the document as the Inspector did. In any case, his evidence asregards the adha ghanta matter seems to me to be correct and I do not think theJudge was justified in taking the extreme view of his conduct that he did.

27. It is said Ramdhon was giving information only thirdhand, he had heard from Ram Janam who had heard from Brij Lochan: but althoughthat may be so as to the occurrence of the murder, he was speaking from his ownknowledge as to what Basdeo told him and as to when Brij Lochan came to theChhowni and the Court below is quite right in taking his information as thefirst information in the case as to these matters. There is another correctionin the first page of Exhibit 2, which seems to throw a further light on thecase. Ramdhon said that Basdeo Narain told him that if Girjalal and BrijLochan should come to tell (them) to come soon." The words "Girjalaland" have been cancelled. There could be no mistake about this. AltafHossain says he wrote "Brijlal ko" and not "Girja Lal wo."This, however, is not so, the original writing was "Girja Lal wo",i.e., "Girjalal" and it is in evidence that Girja Lal saw Basdeo onSaturday and Sunday and Basdeo told him "chalo it will be seen in thecity" and Brij Lochan says he understood that there was to be acompromise, so that Basdeo expected Girja would come with Brij Lochan; thisseems to throw doubt on Brij Lochans story of being sent back for taking acertain plaint for cross-examination. This plaint should have been with himwhen he went to the thana but it was not and he explains that he had changedhis coat. In the latter part of the first information, I find Ramdhon says hesaw Girja Lal and some others pass by in the early morning in the direction ofSassiram. This part of the first information must have been given after BrijLochan came to the thana and Girja Lals name was struck out from the firstpage as militating against the case settled upon by Brij Lochan. It is inevidence that on seeing that Ramdhons statement was being recorded, BrijLochan said that he was to give the first information as he was an eye-witness,the statement of Ramdhon was, however, allowed to remain in the firstinformation in the case. It may be that the information already recorded withthe alterations was considered to sufficiently adumbrate the case for theprosecution and it was not considered necessary to have a fresh one from themouth of Brij Lochan. In any case, we have not before us the recordeddeposition of Brij Lochan and we do not know what he then said.

28. As regards, the story of Brij Lochan apart from thefirst information, if he left immediately after Basdeo had left KarsarwaChhowni and was within a few rossis of Basdeo, there was nothing to prevent hisovertaking Basdeo as he was running his bike fast. Basdeo would not then beleft alone to face his assailants. Supposing he came too late and was actuallypursued by Mahadeo Kahar with a danta, why did he not turn back when he wasreinforced by Seo Lochan Daffadar and the two peons, Dewa and Kesho: with theirhelp, be might have pursued the assailants and caught them red-handed or in anycase rendered intelligent aid to his disabled master for he could not then haveknown that he was actually dead as he was at a distance and the assailants wereon all sides of the deceased. Even when he saw the assailants running away, hewould not turn back but made his way as fast as his bike could carry him toinform Chandrika. If he had biked to Sassiram, he could have reached muchearlier than the accused whom he knew could reach and he could have had themarrested as they entered the town. The Sub-Inspector was shown the place whereBrij Lochan is said to have been turned his bicycle back but he could not findany tracks of a bicycle there. I think it would be very unsafe to act upon hisevidence. If his evidence fails to carry conviction the evidence of SheoLochan, Dewa and Kesho who are said to have been first informed by him mustalso fail and I think the learned Judge was right in disbelieving them. Asregards Samaria, I feel it difficult to believe her story of the identificationof the accused, Autar and Mahadeo Mali. She had never been to Darigaon, Shesays she had known them by name for more than two or three years but she doesnot say in what connection. She says the deceased was going northward when hisassailants came to his front. If that were so, the deceased could not have runfurther northwards as he did. If she saw the Babu getting down from hisbicycle, she could have said how only one of his shoes was on his leg and theother near the bike. There is besides good deal of doubt as to the manner inwhich she was reached. The Sub-Inspector says she was named by Subakhan andSubakhan stoutly denies this: the diary of the 25th also which contains herstatement did not reach the Sudder Station until the 28th and does not bear thedate stamp of the thana The Sub-Inspector says that he saw her coming and wenta little way south of the village and took her statement there on the road sothat it was not taken in the thana, where other people would have heard her. Ido not think it would be safe to act on her evidence.

29. Then, again, the accused Mahadeo Kahar had sold two bullocksloads of fuel to the school accountant about 10 a.m. and Girija Lal had seenhis Muktear about 9 a.m. and nothing unusual was found in their appearance. Theother accused also were arrested very soon after: some blood stains are said tohave been found on the cloth of Mahadeo Kahar but the Chemical Examiner couldnot say whether it was mammalian blood. Mahadeo Mali is said to have beenputting on an old dhoti which secured to have been pat on newly but that ishardly a circumstance for identification. The appearance of the deceased showsthat there must have been a struggle; not even a scratch is found on any of theappellants. If the murder took place at 9 a.m. or even at 8 1/2 a.m., thesepeople could not have been calmly transacting business at, Sassiram about 9-45a.m. If they had been the actual assailants, soma sign or other of a struggle,some indication of their having run through thick jungle, would have beenapparent from their persons or their clothes, I find no unmistakablecircumstance to spot these people as the actual assailants. Even if I take itas proved that they would naturally be inclined to get rid of their oppressorand even if I take it as probable that they were privy to this terrible deed, Icannot convict them of the commission of the offence so long as I cannotbelieve the evidence that is brought to convict them directly with the offencecharged and in the manner alleged. I am, therefore, unable to sustain theconviction and would, therefore, order their acquittal. I regret I disagreefrom my learned brother but the more I have considered the details, the more Ihave come to the conclusion that the conviction cannot be sustained.

JUDGMENT

Herbert Carnduff, J.

30. This case originally crime before a Bench of two Judgesby way of appeal, and also for confirmation of the sentences of death passedupon the six appellants on conviction of the murder of one Basdeo Singh, and ithas now been referred to me under section 429 of the Code of CriminalProcedure, 1898, in consequence of a difference of opinion between the twolearned Judges, Stephen and Digambar Chatterjee, JJ., who constituted theBench.

31. Basdeo Singh and the appellants had long been at enmityand the enmity appears to have culminated in December 1911, in the prosecutionfor perjury of two of the latter, Mahadeo Mali and Girja Lal. The 25th March1912 was fixed for the defence in that case and the remaining four appellantswere witnesses cited on behalf of the accused in it. Accordingly, on themorning of the day mentioned, Basdeo set out on a bicycle from Darigaon for theCourt at Sassiram, and there can be no doubt as to his having been waylaid andmurdered on the road near a village called Gharbari. It is equally beyond doubtthat the appellants had started from Darigaon before Basdeo, and were also ontheir way to Sassiram, where they were eventually all found and arrested afterthe murder. The case for the prosecution is that they were Basdeos assailants;and the charge against them has been found by both the Sessions Judge and theAssessors to have been proved.

32. Two persons said to have been eye- witnesses of thecrime were produced by the prosecution. The first was Brij Lochan Sahai,Basdeos Karpardaz, who followed Basdeo on a bicycle and swore that he arrivedin time to see Mahadeo Mali cutting his masters throat while the otherappellants were holding him down. His evidence is, I think it must be conceded,supported at every turn by ample corroboration, and if he really witnessed theoccurrence and can be believed, there is an end of the case. The othereye-witness was Musammat Samaria, a woman who deposed that as she was returningto her house on the morning of the 25th March from a place called Lerna, shewitnessed the attack from under a bridge on the road, and the same may be saidas to her testimony in respect of, at least, two of the appellants, MahadeoMali and Autar Singh, whom she recognised and named at once. The question fordecision, therefore, lies within a very narrow compass: for it resolvesitself, into one as to how far, if at all, those two persons are to becredited. The Sessions Judge, it may here be stated, discarded the evidence ofBrij Lochan Sahai altogether and convicted on that of Musammat Samaria; while,as regards the two Assessors, it is not apparent on whose testimony they reliedin expressing the opinion that the guilt of all the appellants had beenestablished.

33. I will deal first with the evidence of Brij LochanSahai. According to himself, he was about to start from the Kutchery atDarigaon along with Basdeo but halted at the last moment in order to fetch aparticular document which had been overlooked. The document was in a certainbox, and be seems to have had no difficulty in finding it. According to RadhaPrasad, an Ameen in Basdeos service and apparently a person of some education,Brij Lochan was delayed for only 7 or 8 minutes on this account. He was seen byRamdhon Singh at Kasarwn, a mile from Darigaon, "a little way" behindBasdeo. Somewhat farther on he was, Sheo Lochan and Kesho Singh deposed, in"15 or 20 bighas" (i.e., from 600 to 800 yards) behind Basdeo.Musammat Dhanwatia saw them both evidently close together near the scene of theoccurrence. All of this evidence, and much more that fits in with it, the learnedSessions Judge has, for reasons which seem to me to be not only very inadequatebut throughout unsubstantial and unsound, rejected, and in the face of it hehas arrived at the finding that Brij Lochan Sahai was half an hour later thanBasdeo and, consequently, cannot hence been an eye-witness. The point is one ofcrucial importance and it will be necessary for me to deal seriatim and at somelength with the reasons which I have just alluded to and condemned.

34. At the outset, the Sessions Judge refers to the firstinformation given by Ramdhon Singh, who has already been mentioned as havingmet Brij Lochan "a little way" behind Basdeo at Kasarwa; and hepoints out that, while it was there recorded that Ramdhan said that Brij Lochanfollowed Basdeo immediately--(phauran),--he words "half-an hour"(adha ghanta) and scored out before the adverb. He then finds and here Ientirely agree with him and consider his argument unassailable that nosuspicion attaches to the erasure and that, as explained by the recordingSub-Inspector, Ramdhon at first said "adha ghanta" and at oncecorrected himself. It is true, no doubt, that the word phauran" occurs atthe end of a line, and that as pointed out by Chatterjee, J., there are someother lines in which the last word is written further from the end; but I thinkray learned brother must have overlooked the fact that in each of thoseinstances, the blank is fully filled up by a long dash, and that, if"phauran" be struck out of the first line, that line becomes markedlydifferent from every other line in the document. And the suggestion that theword was inserted separately on each of the carbon copies afterwards, I find itdifficult to grasp, especially as it is in evidence that, while the informationwas recorded after 11 oclock, the Sub-Divisional -Magistrates copy wasactually in that officers hands by raid-day. As I have said, then, theSessions Judge is certainly right in finding that the correction was madeverbally by Ramdhon and in writing by the Sub-Inspector at the time. But whenhe goes on to declare that he believes that the words Ramdhon first utteredwere correct," I am wholly unable to follow him. "To begin with"he observes it is likely that Brij Lochan would have been delayed some time infinding the paper, and would not have followed immediately." That is so ofcourse, but the point is whether the interval of "some time" was 7 or8 minutes as stated categorically by Radha Prashad or half an hour, and theprobabilities, as well as all the evidence, seem to me to point to the accuracyof Radha Prashads statement.

35. Then the learned Judge starts to argue in a circle bytaking it as established that Ramdhon at first said, and meant to say, thatBrij Lochan followed in half an hour and be thereupon proceeds to rely upon thecancelled statement in the first information as contradicting, not onlyRamdhon, but the direct evidence to the contrary of all the other witnesses onthe point. Now, the first information is a document of great importance and itis in practice always and very rightly produced and proved in criminal trials.But it is not a piece of substantive evidence and it can be used only as aprevious statement admissible to corroborate or contradict the author of it.The learned Sessions Judge has, therefore, here fallen into a very seriouserror and the error is one which seems to me to be at the foundation of, and soto vitiate, the whole of his reasoning.

36. Next, the Sessions Judge remarks that, if Brij Lochanarrived as close to the occurrence as he says, he would have heard some soundbefore he saw Basdeos bicycle on the ground and would probably himself havebeen caught. These are but surmises and they ignore, first, the actual distanceintervening which seems to have been anything from 75 to 150 yards and,secondly, the story told by Brij Lochan and corroborated, by others as to BrijLochans headlong flight after the occurrence when he was threatened by one ofthe murderers armed with a lathi.

37. Again, the Sessions Judges calculations as to variousdistances being shorter than others and the improbability of Brij Lochan havingtravelled less quickly on a bicycle than did some of the witnesses on foot,lose sight of the fact that the latter was evidently running and probably runningas fast as they could.

38. Finally, the remarks that even if Brij Lochan were aneye-witness, it would not have been possible for the two witnesses, Kesho andSheo Lochan Daffadar, to have arrived in time to see the accused personsrunning away, seems to me to be based, on nothing at all and to beirreconcilable with the circumstances very fully proved, in my opinion, thatthe daffadar almost then and there independently and of his own motion sent achaukidar to lodge information at the thana and gave him the names of all theappellants.

39. These are, I think, all the reasons indicated by theSessions Judge, and I think I have said enough to show that they aresurprisingly erroneous from first to last. It follows that the finding basedupon them cannot be accepted; for it is reduced to mere suspicion and surmise,neither of which is, to my mind, justified by anything on the record. An efforthas, however, been made to support it here on another ground connected with thefirst information, and that I will now proceed to consider.

40. In the document referred to there are several erasuresbesides the one already noticed, and among them on the first page will beobserved the erasure of some words which are said to be "Girja Dalwo" and were originally written before the words Brij LochanSahai." Apart from the initial G and the small word at the end, theobliteration is very imperfect and the remaining letters are clear. Ramdhonhimself declares that, although he had, as is indeed the case, just mentionedthe accused Girja Lal in another connection, he certainly did not mention himin this connection, and the writer deposes that the words scored through are"Brija Lal ko" which he wrote by mistake for "Brij LochanSahai" and at once struck out. Now I find it quite impossible to Baywhether the last word is ko or wo; for in the very unattractive Kaithi scriptused, the two are apt to be, and are in fact elsewhere, written exactly alike.As regards the first letter I have a difficulty in saying whether it is a G ora B; but, on the whole, it strikes me as more like the former than the latter,and in any case I propose to give the appellants the benefit of the doubt andread the passage as "Girja Lall wo." So read, it makes Ramdhon say,that Basdeo told him to ask the appellant Girja Lall and Brij Lochan to makehaste and on this the following argument is raised.

41. Admittedly Girja Lall, one of the persons who was beingprosecuted for perjury, had been approaching Basdeo with a view to thecompromise or withdrawal of the case against him; and it would appear thatBasdeo Lal had indicated that he was not unwilling to consider the matter.Basdeo evidently expected Girja Lall to accompany Brij Lochan, and from this itfollows that it had been arranged that all three were to go to Sassiramamicably together. Therefore, Basdeo had come to terms with Girja Lall, thedirect motive for the murder of the former at that particular juncture had inconsequence ceased to exist; and with it must go the basis of the whole casefor the Crown. Further, it is certain that Girja Lall did not keep hisappointment; that being so, Brij Lochan must have waited for him for much morethan 7 or 8 minutes; and the Sessions Judges finding that Brij Lochan followedafter an interval of half an hour and too late to see anything is thusstrengthened. The danger to be feared from the words thus put by Ramdhon intoBasdeos mouth was realised by Brij Lochan as soon as he heard them uttered onhis arrival at the thana, and he, with, of course, the connivance of thePolice, had them obliterated.

42. This argument, which, Mr. Huq admits, was never thoughtof until the appellants put themselves into his able hands in this Court, isingenious, but there are many difficulties in the way of allowing it toprevail. Ramdhon had, as already indicated, just mentioned Girja Lall by name;Brij Lochan appears--see the evidence of Dhanwatia--to have been occasionallycalled by Birj Lall; the two names might well have been confused together, andit requires no stretch of imagination to understand how easily a mistake mayhave been made either by Ramdhan or by the Sub-Inspector in this connection,Moreover, if this erasure had been deliberately made as suggested, surely thewords would have been obliterated much more carefully and completely.. TheSub-Divisional Magistrates copy of the first information reached him withinthe hour; there were a large number of people at the thana and considerableexcitement at the time; it is difficult to believe that in these circumstances,the alteration was dishonestly made in the interval, and even Gurdeo Singh,whose evidence was certainly not intended to help the prosecution, evidentlydid not hear the reference to Girja Lall as well as Brij Lochan. Then, at most,the question of compromise had been raised and left in the air, the quid proquo not having been settled; and it must, indeed, have been so, for perjury isa non-compoundable offence, and I do not myself understand how the prosecutioncould have been withdrawn or not pressed at the defence stage, which it hadthen been reached. Again, it was Girja Lall, who sought a favour; he was boundin any case to be in Sassiram at 11 oclock in order-to enter on his defence;and it is not clear why Basdeo should have been anxious about his arrival intime to talk about a compromise which he (Girja) had wanted or why Brij Lochanshould have wasted any time in waiting for Girja Lall. Finally, there isnothing on the record to show that Girja Lall was expected to accompany Basdeoand Brij Lochan and, as a matter of fact, as is clear from his own statement,Girja Lall did not do so, but started from Darigaon along with the otherappellants independently and considerably earlier before dawn in fact. Thewhole of the structure thus elaborately set up on behalf of the appellantsseems to me, therefore, to crumble to pieces as soon as it is touched, and I amconfirmed in the conclusion that the learned Sessions Judges finding that BrijLochan Sahai was not an eye-witness is, undoubtedly, wrong.

43. I now come, to consider Musummat Samaria, the othereye-witness upon whom the Sessions Judge has relied. Her evidence is assailedon the following grounds:--

First, there is some doubt as to how she was discovered, theSub-inspector swearing that he got her name from Suba Singh, and Suba Singhdeclaring that he did not know, and could not, therefore, have given her name.The point is one to which I do not attach much importance, for it seems to meto be very likely that the Sub-Inspector was making a mistake. The woman hadgone about telling a number of people what she had seen and any one of them mayhave disclosed her name to the Investigating Police Officer.

In the second place, it is pointed out and correctly thatthe Police diary of the 25th March does not bear thy stamp of the Inspectorsoffice and was not despatched to headquarters until the 27th. The suggestion isthat Samaria was not examined on the 25th as alleged, but at some time on the26th. As regards this, [agree with the learned Sessions Judge in thinking thatthe explanation offered is sufficient and that there was no dishonest dealingin this connection. Indeed it would not, so far as I can see, have made on iotaof difference had the woman not been examined till the 26th and there was,therefore, no object in taking the diary of the day before.

Thirdly, it is contended that the evidence of Samariacannot, in the face of the Sub-Inspectors admission that she declared to himthat she had recognised only Autar Singh and Mahadeo Mali, be regarded as ofany value whatever against the other four appellants, and that, if BrijLochans evidence be discarded, the evidence left against these four is notsufficient to justify their conviction. In this, I think that Mr. Huq is certainlyright, and the Sessions Judge was, in ray opinion, wrong in convicting MahadeoKahar, Mahadeo Souar, Girja Lal and Dal Singar Sonar after he had rejected thetestimony of Brij Lochan.

Finally, there remains only the suggestion that the story asto Samarias having gone to Lerna on a fruitless errand to purchase a goat,which is put forward to explain her presence on the scene at the right moment,is unworthy of credit. The story certainly does not strike me as a veryconvincing one, but I do not think I can discard the womans evidence on thataccount. As Mr. Justice Stephen has observed, there are, as the record stands,several questions in connection with this which may be more easily asked thananswered, but, nothing to injure her credit is disclosed by the questions thatwere put to her in cross-examination and it would not be right to assume thatshe would have been unable to answer satisfactorily questions that were not putto her. Indeed, I take the same view of the Musammats testimony as Mr. JusticeStephen, and my conclusion is that it is a fair statement of what she actuallyobserved, that it is direct evidence fully proving the charge against AutarSingh and Mahadeo Mali, and that it affords very valuable corroboration of theevidence of Brij Lochan Sahai.

44. The result is that I agree with the Sessions Judge andthe assessors and feel no manner of doubt as to guilt of all the appellants andI dismiss their appeals. The question of sentence has, however, caused me muchanxious thought. That the learned Sessions Judge was right in passing sentencesof death in the first instance I have no hesitation in saying. But, apart fromthe circumstance that one learned Judge of this Court has expressed himself asdissatisfied with the evidence, I am oppressed by the feeling that theappellants have, through no fault of theirs, had these capital sentencessuspended over their heads for nearly six months. It is a fine point, perhapswhether I, sitting here as a Judge, should pay any attention to this fact andwhether I ought not to confine myself to considering the propriety of thesentences when originally passed, leaving the rest to the Executive Government.On the whole, I think that as the law stands in India where the alternativepenalties of death and transportation are prescribed for murder, it is a matterfor my consideration, and that I ought not to confirm the death sentencesunless I personally think that they ought to be carried out now. And I believeI am right in Baying that delay such as this has before now been regarded byJudges as a sufficient reason for refraining from imposing the extreme penalty.In this view, I will not confirm the sentences of death but direct that they bealtered into sentences of transportation for life.

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Autar Singh vs.Emperor (23.01.1913 - CALHC)