James, J.This is an appeal from the order of the Judicial Commissioner of Chota Nagpur convicting the appellant of an offence u/s 302, Indian Penal Code, and sentencing him to transportation for life. The First Information Report in the case was lodged at Daltonganj Police Station by Gholam Muhammad chaukidar of Rerma Tillage, 2 miles from Daltonganj, at 1-30 a.m. on the morning of 5th June. It was to the effect that at 11-30 p.m. Munshi Tewari of Rerma had come to the chaukidars house and told him that he was wanted by Madho Tewari. He went to Madho Tewari who said:

A murder has been committed in the house of Harihar Ram of Rerma, hurry up, otherwise the body will be burnt.

2. He went towards Harihars house. On the way he met Harihars son Mathura Tewari who was with four men, Juthan Earn, Halkhori Tewari, Jairam Tewari and Bhikham Tewari, He went with them to the house of Harihar, where in the courtyard he found that the wife of Mathuras brother Ram Partap was lying dead. Mathuras wife was also lying in the courtyard, unconscious from a wound, apparently inflicted by an axe. The chaukidar inquired of Harihar, Mathura and Ram Partap who said that it was not known who had committed the assault. He then went to the Police Station taking with him Mathura Tewari whom he suspected to be guilty of the murder.

3. The Sub-Inspector went at once to the village, where he arrived at about 3.15 a.m., and investigated the case. Certain statements were made by two daughters of the dead woman and a daughter of the woman who had suffered grievous hurt, which were recorded by a Magistrate at Daltoaganj u/s 164, Criminal Procedure Code. Mathura Tewari was in due course sent up for trial, charged with murder of Ganeshi, and with causing grievous hurt to his wife. In the Court of the Committing Magistrate the daughters of Ram Partap gave evidence which agreed with the statement which they had made u/s 164, Criminal Procedure Code, while Mathuras daughter, though her evidence was consistent with not previous statement omitted to mention the important fact, contained in her former statement that immediately after the occurrence Jasmatia had accused Mathura of the crime, At the trial all three of the girls completely resiled from their former statements; but their testimony given before the Committing Magistrate was taken in evidence u/s 288, Criminal Procedure Code. The only one of the three who had actually seen Mathura using his axe was Jasmatia; and the learned Judicial Commissioner based his decision upon the fact that her evidence admitted u/s 288 was sufficiently corroborated by the evidence of another eye-witness named Arjun Ram. Two of the assessors were of opinion that the accused was guilty of murdering his sister-in-law and causing grievous hurt to his wife; while two of them were of opinion that ha was not guilty. The learned Judicial Commissioner agreeing with two of the assessors convicted Mathura Tewari of the murder of Ram Partaps wife and of causing grievous hurt to his own wife and sentenced him, as has been stated above, to transportation for life u/s 302, Indian Penal Code Heimposed no separate sentence u/s 326.

4. At the trial of the case Munshi Tewari the man who called the chaukidar, said that hearing a noise in the house of Mathura Tewari a ghari before sunset he went to the place; another neighbour Tirbeni came up at that time and Mathura made admissions to them which amounted to a confession. At about 11 p. m. observing that the Police and the chaukidar had not been brought to the place he went to Madho, Tewari and told him of the occurrence. Madho Tewari told him to bring the chaukidar which he did. Madho Tewari said that he heard for the first time of the murder from Munshi Tewari when he was told at 11 p. m. This latter statement is treated by learned Counsel for the appellant as of some importance in connexion with the evidence of Arjun Ram which must be considered later; but it is sufficient here to remark that the learned Judicial Commissioner did not think it safe to rely upon the extra-judicial confession, which he did not treat as of any importance in coming to his decision.

5. One of the most important points for consideration in this case is the question of which of the two statements of Jasmatia and Parbatia, which are on the record, ought to be accepted. Jasmatias present story, that she was in the house asleep and that she came out into the angan after the arrival of the Police is contradicted by the evidence of the chaukidar and of the Sub-Inspector which is to the effect that the girls were not at the house when the Police arrived. Whatever may be said of the evidence of the Sub-Inspector as having been given after Jasmatia had deposed in the Sessions Court, the chaukidars statement was made before Jasmatia gave evidence, before he could have known that she would change the story which she had told before the Committing Magistrate. There is thus direct contradiction of the story told by Jasmatia in the Sessions Court.

6. Some corroboration of the evidence of the girls before the Committing Magistrate is supplied by the statements which were recorded u/s 164 of the Code of Criminal Procedure. Sir Ali Imam on behalf of the appellant does not question the correctness of the view that previous statements of the witnesses may be treated as corroboration u/s 157 of the Evidence Act of testimony admitted in evidence u/s 288 of the Code of Criminal Procedure; and, indeed, if authority were needed for this view, it is to be found in the case of Velliah Kone v. Empzror 72 Ind. Cas. 529 : 16 L.W. 239 : 43 M.L.J. 222 : (1922) M.W.N. 506 : 31 M.L.T. 175 : 45 M. 766 : AIR 1923 Mad. 20 : 24 Cr.L.J. 417 in which a Division Bench of the Madras High Court treated a previous statement recorded u/s 164 of the Criminal Procedure Code as affording corroboration of the statement admitted in evidence u/s 288 of the Code of Criminal Procedure.

7. It is suggested that Jasmatias statement u/s 164 of the Code of Criminal Procedure is not in accordance with the medical evidence. That statement was to the following effect:

Ganeshi was my mother. She is dead. Mathura my uncle killed her with a balua which was in the chapper.. He killed her for she had claimed her share. The first blow was hit on her neck. She fell down. Then she was hit on other parts of the body. The accused has injured his wife also.

8. The medical evidence is to the effect that Ganeshi had an incisad wound on the tip of her right shoulder, and another incised wound, which actually caused her death, on the left side of her neck, and it is suggested that the statement that she was hit on other parts of the body implies that more than two wounds were inflicted; but the statement is not sufficiently definite to enable that inference to be drawn. What is clear is that the girl said that Mathura killed Ganeshi with an axe. Parbatia also made a statement u/s 164 in which she said that when she came in she found her mother dead and her sister Jasmatia weeping, who told her that Mathura Tewari had killed her mother. These statements made very shortly after the occurrence would in themselves afford sufficient corroboration of the testimony which was admitted in evidence u/s 288 of the Code of Criminal Procedure, to warrant the acceptance of that testimony in preference to the evidence given by these witnesses in the Sessions Court. But there is further corroboration of a most important nature, in the story which these witnesses told to Deobans Pande, brother of the murdered woman. This man came over to Rerma on the morning of the 6th of June. At that time Jasmatia said to him that when she and her younger brother Budhan were eating before sunset there was a quarrel between Mathura and her mother about paddy and that in the course of this quarrel Mathura had struck her with his axe, and that afterwards he had struck his wife. Parbatia told him that at some time before sunset she heard the hulla and ran inside the house where she saw her mother lying dead near a heap of paddy and her aunt lying injured Sir Ali Imam suggests that the evidence of Ddobans Pande has been discredited, because a certain letter which he brought with him, which purported to be a message from his sister, was not admitted in evidence by the learned Judicial Commissioner. The letter was not admitted in evidence because it was not proved by whom it was written; but the assessors were definitely told that the fact that Deobans had received a letter in consequence of which he had come to Daltonganj must be taken in evidence, although the letter itself could not be treated as evidence of the correctness of its contents. It does not appear that the learned Judicial Commissioner discredited the evidence of Deobans Pande; and there is no reason to doubt its truth. He is a respectable person who is employed as a Head Pandit; and it is certainly on the face of it most unlikely that he would go out of his way to say what was untrue in order to bring about the probable hanging of the brother of his sisters husband-sines, to put the matter at its lowest level, an execution in the family would do no good socially or officially to an officer of the Education Department. The evidence of Deobans Pande is obviously worthy of credit, and it affords corroboration of a most important kind to the statements of Jasmatia and Parbatia which were made before the Committing Magistrate. Jasmatia herself said in the Sessions Court that she made her statement which was recorded u/s 164 of the Criminal Procedure Code, because she was bullied by the Police. If there had been any foundation for this imputation she would certainly not have made a similar statement to her mothers brother, and the same remark applies to the statement made by Parbatia. In view of this important corroboration the testimony of Jasmatia and Parbatia, which was admitted u/s 288 of the Code of Criminal Procedure, ought to be believed in preference to their statements made in evidence in the Court of Session and the finding of the learned Judicial Commissioner should manifestly be affirmed on the testimony of Jasmatia Tewarin.

9. Apart from this evidence which appears to be conclusive, there is the evidence of another witness, Arjun Ram, who professed to have seen this occurrence. This man, who is employed by a bania of Daltonganj, says that he came to the village on that day to collect dues from his masters customers one of whom was Ram Partap and he happened to come to the house of Ram Pratap at the moment of the murder. The evidence of this witness; was believed by the learned Judicial Commissioner; but it has been vehemently attacked in this Court by Sir Ali Imam. The witness said that when he came to the door of the angan Ram Partab was sitting just inside on a khatia. He called to Ram Partap, but at that moment the quarrel was going on between Mathura Tewari and Ganeshi. He saw the attack made by Mathura Tewari, first on Ganeshi and then on Mathuras wife, seeing which he became afraid, and ran away to the coolie depot raising an alarm. The witness says that Ram Partap remained seated on his khatia while this occurred. It is pointed out with some reason that it would be most unnatural for a husband to see his wife attacked in this way without at once going to her assistance; but it appears that Ram Partap had been ill for a long time, which might account for some sluggishness of movement; and further, it is to be remembered that the occurrence must have been very rapid, taking a much shorter time to act than to describe. Arjun Ram ran away and presently returned with three or four men. When he came back Ram Partap was again seated on his khatia while the women of the household were attending to the two injured women; but it does not follow that Ram Partap had not moved during the interval. The witness also says that Hariharcame up outside at about the time of the occurrence. This man is the father of Ram Pratap and of Mathura and it doe not appear that he was an actual eye-witness of the murder.

10. The door through which Arjun Ram professes to have seen the occurrence was 4 feet 3 inches from the chaukhat. The height of the lower chaukhat was six inches from the ground. Arjun himself is 5 feet 5 inches in height. He says that when he witnessed this occurrence he was standing with one foot on the ground and one foot on the chaukhat and that he was not stooping. From the evidence of the Sub-Inspector it appears that unless he stooped in some way he would not be able to see inside the door. Now Arjun Ram may say that he was standing upright when he saw the occurrence; but an important fact to be noted is that he was actually taken to the place afterwards and made to look through the door by the Sub-Inspector. The explanation appears to be simple. The man says that he was standing with one foot on the ground and the other resting on the chaukhat. He would naturally bend both knees to look inside the door without noticing that he was stooping.

11. It appears that after Arjun had returned to his house with three or four villagers and had gone away from it he continued his work of collection, and that he tried to collect his masters dues from Madho Ram Tewari. It is argued that he would have told Madho Ram Tewari of this murder; so that Madho Ram would not have learnt it for the first time from Munshi Tewari late at night. It is possible that he did tell Madho Tewari; but whether he did or did not tell him; the fact is of no importance in connection with this case. As Arjun Ram himself says,

Should he have gone all round the place saying murder, murder" There are some discrepancies between the evidence of Arjun and that of Mangtu Lal, regarding what Arjun said to his employer about the murder. The learned Judicial Commissioner was of opinion that Mangtu Lal was trying to hold something back; and indeed it would appear that he was endeavouring to keep out of the business as far as he possibly could.

12. Sir Ali Imam contends that Ram Partap and Harihar ought to have been examined on behalf of the prosecution in this case. But it appears that from the beginning these men had said that they knew nothing about the occurrence; the fact is indeed mentioned in the first information itself. An inference which may certainly be drawn from the failure to call Ram Partap and Harihar as witnesses is that if they had been called they would not have given evidence which would have been amaging to the accused; as may well be believed, since one of them is his brother and the other is his father. It does not follow from the fact that Ram Partap and Harihar were not called, that Jasmatia, Parbatia and Deobans are not to be believed. Sir Ali Imam argues that all eye-witnesses must be called for the prosecution whether they may be expected to tell the truth or not. It is sufficiently clear from the record that these witnesses were not examined because they were not expected to tell the truth, and it does not appear to be reasonable that a near relation should be regarded as a necessary witness for the prosecution when it is known that he is unwilling to speak the truth; and when the result will certainly be that he will be treated as hostile and harassed by cross-examination for declining to assist in the prosecution of his son or brother.

13. Another witness, who it is said ought to have been examined, is one Ram Birich, from whom the Sab-Inspector learnt that Arjun Ram had been present in the village on that afternoon; but there is nothing to indicate that Ram Birich himself, had any first hand knowledge of this murder, and there is no obligation on the Crown to call witnesses whose evidence will be merely relevant u/s 157 of the Evidence Act.

14. It is further suggested that the four men named in the first information as having been in the company of Mathura when the chaukidar came up at eleven oclock at night ought to have been called as witnesses; but it cannot be argued that every person whose name crops up in a case in any connexion ought to be examined as a witness for the prosecution. There is nothing to indicate that these four men could have given any evidence which would have been relevant. The case against the appellant appears to have been fully proved. I would affirm the finding and sentence of the lower Court and dismiss the appeal.

Jwala Prasad. J.

15. The appellant has been convicted of hitting with an axe his brothers wife Ganeshi, and his own wife Musan, with the result that the former instantly died and the latter sustained grievous injuries. The question is whether it has been established heyond any shadow of doubt that the appellant assaulted the two women.

16. The occurrence is said to have taken place at about 5 p.m, on the 4th of June, 1928. The family of the accused living in the house consisted of himself, his brother Partap, his father Harihar, Partaps wife Ganeshi the deceased, the two daughters of Ganeshi named Parbatia and Jasmatia, accuseds own wife Musan and his daughter Koil. The occurrence took place in the angan enclosed on all sides by walls, with verandahs on three sides and having a mandap or marwa (a temporary hut raised on nine bamboos on the occasion of celebration of some marriage in the family). The house had two doors, one to the north and the other to the southeast. The occurrence is said to have taken place over a dispute for the division of paddy between Mathura Tewari the accused and Partaps wife Ganeshi the deceased. The place of occurrence is not disputed, and in fact it is admitted by Musan herself. In her evidence at the Sessions trial on the 30th July she places the occurrence in the verandah. She says:

I was asleep one evening in the verandah on a khatia in the eastern verandah. While I was asleep I felt an injury on my thigh. I awoke. After that I got an injury on my side. I was quarrelling with my gotni Ram Partaps wife. She hit me. I did not notice what she hit me with. Then I hit her. Partaps wife had some thing like a balua or tangi in her hand. I snatched it away from her and hit her with it. After that I became senseless so I cannot say whether she died.

17. In the Committing Magistrates Court when she was examined a month earlier on the 30th of June she said that she was unconscious and did not make any statement, whereas she was conscious when the Sub-Inspector arrived and examined her. The Assistant Surgeon, who examined her on the 6th of June, says that she was conscious when she was brought into the hospital. To the Assistant Surgeon she said that she did not know who had committed the act. To the Sub-Inspector, who examined her just on his arrival at 3 30 a.m. on the 5th of June, she made a statement but she did not tell him that her gotni Partaps wife, had hit her or that she herself had snatched away the axe from Partaps wife and hit her. Her evidence has naturally been disbelieved, inasmuch as she did not give a true and correct ac count of what happened, particularly about the assault committed upon herself and her gotni Ganeshi. Her evidence is important to fix the place of occurrence, the weapon (balua or tangi) with which the injuries on herself and her gotni were caused and the cause of this occurrence, namely, a domestic quarrel. It also proves, though in a negative way, that no outsider committed the assault. She certainly must have known about it, because she herself had received serious injuries; and, if an outsider had been the assailant, she would have been the last person to conceal the name of the assailant. She, no doubt, does not tell the whole truth. There is, therefore, no truth in the suggestion made on behalf of the accused that Tewari or any other outsider, relation or neighbour committed the offence.

18. Now amongst the inmates of the house there were only three adult persons who could have committed the assault, Harihar, Partap and Mathura the accused. According to the case of the prosecution Harihar was outside on a tatti, a few paces away to the south east of the house; and Parbap is said to have been ill for a long time and unable to walk. If Harihar or Partap had been the real assailant, Musan, the wife of the accused, would have been the last person to shield them and to let the blame be cast upon her own husband.

19. In the morning when the Sub-Inspector arrived, he took the statements of the little girls in the house, Parbatia, Jasmatia and Koil. They were examined u/s 164 before a Magistrate at the instance of the Sub-Inspector, he apparently suspecting that the girls might be tampered with. They were, examined before the Commitment Court and lastly in the Sessions Court. They must certainly have been in the house at the time of the occurrence. They are young girls, and it was evening when the occurrence took place. They must have seen the occurrence and, as a matter of fact, they did state so and Jasmatia and Parbatia directly implicated the accused. Koil corroborated the statements of the other two girls, though she was herself not actually an eye-witness. They have resiled in the Sessions Court from their statements made at the earliest stage u/s 164 of the Criminal Procedure Code and before the Commitment Court. No doubt, the statement before the Commitment Court, which has been admitted in evidence u/s 288 of the Code of Criminal Pro-cedure, can be corroborated by an earlier statement made u/s 164: of the Code by virtue of, Section 157 of the Indian Evidence Act. The value of an earlier statement for the purpose of corroboration u/s 157 rests upon the fact that the earlier statement was made at or about the time the occurrence took place, and the later statement when corroborated by the earlier statement acquires more credibility on account of the witness having consistently made the same statement twice. But the corroborative value of a previous statement is of varying character depending upon the circumstances of each case and a person may equally persistently adhere to the falsehood once uttered by him if there be a motive for it, so that if the earliest statement made u/s 164 is unworthy of credit the subsequent statement will not add weight to it and for the matter of that a number of repetitions of the same statement would count very little. When the statements made u/s 164 and before the Commitment Court are, as a matter of fact, retracted in the Sessions Court, the value of the corroboration afforded by the earlier statement is very much weakened. As a question of law, it is true that the earlier statements made by a witness are admissible in evidence in order to corroborate his evidence. But the evidentiary value of such statements depends upon the circumstances of each case. It; is not the corroboration of statements that invariably leads to their acceptance as true, for ten witnesses corroborating each other might be telling lies and be disbelieved. The law on the subject has been, to my mind, laid down in a number of recent decisions of this Court, for instance, Jehal Teli Vs. Emperor, and Bigna Kumhar and Others Vs. King-Emperor, .

20. However, the other evidence and circumstances in the case clearly show that the accused is the real culprit, I have already stated the circumstances which go to show that no one else but a member of the family must have committed the crime. The inmates of the house where the occurrence took place must have either seen the occurrence or known about it and they did not implicate any other member of the house except the accused. That leads to the consideration of the most important evidence in the case and that is of Arjun Ram. The criticisms levelled against the evidence of this witness by learned Counsel on behalf of the appellant have been fully met by my learned brother, and I would not repeat them. I would only add that after a careful and anxious consideration I do not find any reason to discredit the testimony of this witness. He has not been shown to be hostile to the accused or his family in any way; he has not been shown to be a partisan or in any way connected with Tirbeni or any other person whom the accused would suspect. Arjun had reason to come to the house in connection with the realisation of debt due by the family of the accused to Mangtu Lal, a shop-keeper of Daltonganj. He was not anxious to come forward and immediately implicate the accused. According to him, he saw the occurrence and went away, and busied himself with his own work. But as his name transpired as one who had probably seen the occurrence, he was called by the Sub-Inspector, and he appeared before him on the 6th of June. The case against the accused rests not upon the retracted statements of the girls but upon the direct testimony of this witness, and the earlier statements of the girls lend great support to the veracity of this witness. I have already shown that the conduct and the evidence of Musan wife of the accused, also indirectly lend support to the evidence of Arjun. Therefore, according to the evidence and the circumstances the accused is of all the persons truly singled out as one who caused the deadly injuries upon the deceased and grievous wounds upon his own wife.

21. Lastly, it is contended that an adverse inference should be drawn against the case of the prosecution on account of their failure to examine the material witnesses in the case, namely, Rambirich, Harihar and Ram Partap. Reliance has been placed upon authorities on the subject, notably on the cases of Empress v. Dhunrio Kazi 10 C.L.R. 151 : 9 C.W.N. 438 : 2 Cri.L.J. 176, Ram Ranjan Roy v. Emperor 27 Ind. Cas. 554 : 19 C.W.N. 30 : 42 C. 422 : 16 Cri.L.J. 170 Amritlal Hazra v. Emperor 29 Ind. Cas. 513 : 19 C.W.N. 695 : 21 C.L.J. 331 : 16 Cri.L.J. 497 : 42 C. 957, Fateh Chand v. Emperar 38 Ind. Cas. 945 : 21 C.W.N. 36 : 24 C.L.J. 400 : 18 Cri.L.J. 385 : 44 C. 477 (F.B.) and Brahamdeo Singha v. Emperor 54 lnd. Cas. 246 : (1920) Pat. 24 : 21 Cri.L.J. 33 : P.L.T. 161 : 2 U.P.L.R. (Pat.) 10. In the first case of Empress v. Dhannu Kazi 10 C.L.R. 151 : 8 C. 121, Wilson, J., observed:

The only legitimate object of a prosecution is to secure not a conviction, but that justice be done. The prosecutor is not, therefore, free to choose how much evidence he will bring before the Court. He is bound to produce all the evidence in his favour directly bearing upon the charge. It is prima fade, his duty, accordingly, to call those witnesses who prove their connection with the transactions in question, and also who must be able to give important information. The only thing that can relieve the prosecutor from calling such witnesses is the reasonable belief that, if called, they would not speak the truth If such witnesses are not called without sufficient reason being shown (and the mere fact of their being summoned for the defence seems to us by no means necessarily a sufficient reason) the Court may properly draw an inference adverse to the prosecution.

22. The words "in his power" in the aforesaid quotation were wrongly stated as "in his favour" in the report of the same case in Empress v. Dhannu Kazi 10 C.L.R. 151 : 8 C. 121 (at page 8 C 124.ed.]) as verified from the original record by Sir Lawrence Jenkins, C.J., in the case of Ram Ranjan Roy v. Emperor 27 Ind. Cas. 554 : 19 C.W.N. 30 : 42 C. 422 : 16 Cri.L.J. 170 where his Lordship emphatically re-affirmed the principle. In that case his Lordship observed that the prosecutor cannot shelter himself behind the suggestion that he was able to form an opinion from evidence previously given that the witnesses were not called because they would not be truthful witnesses inasmuch as they were not examined even before the Committing Magistrate, It was pointed out that in a capital case it is undoubtedly the duty of the Public Prosecutor to place before the trial Court the testimony of all available witnesses. Continuing, his Lordship observed:

This duty is clearly illustrated by the case of R. v. Holden (1838) 8 Car. P. 606 : 173 E.R. 638 where in a murder trial Counsel for the prosecution did not propose to call an eye-witness because she was brought to Court by the defence. On that the presiding Judge remarked She ought to be called. She was present at the transaction. Every witness who was present at a transaction of this sort ought to be called, and even if they give different accounts, it is fit that the Jury should have their evidence so as to draw their own conclusion as to the real truth of the matter. This is no technical rule; it is founded on common sense and is dictated by humanity.

23. In the case of Munni Sonar v. Emperor 9 C.W.N. 438 : 2 Cri.L.J. 176, Mr. Schurr who along with other Police Officers had conducted a search of premises of the accused supposed to be in possession of instruments for counterfeiting coin was not examined on behalf of the prosecution on the ground that he showed an unconscious bias on his part. He was examined on behalf of the defence. It was pointed out that it was the duty of the prosecution to have examined him and though he was examined on behalf of the accused he was treated as a prosecution witness. The other cases referred to on behalf of the accused affirm the same principle. Though it may not be a rule of law, it is not, as pointed out by Sir Lawrence Jenkins, C.J., a technical rule. It is founded on common sense and is dictated by humanity. It is a rule that has been followed for over a century in England as illustrated by the case referred to by Sir Lawrence Jenkins, C.J. I have always been of the same opinion, and I have no doubt in my mind that this salubrious rule should be adhered to for the ends of justice and the prosecution should not be left the option of choosing witnesses who would support the prosecution case and withholding those who would not. Unless it is shown by facts and circumstances in the case that the witnesses were withheld be cause they would not tell the truth, the prosecution should not be left the option to choose. To allow such an option is to create embarrassment. The Court should have the whole of the material evidence and of all eye-witnesses whether in favour of or hostile to the prosecution so as to form its own opinion upon the entire evidence.

24. Now, in the case before us out of the three persons, who it is urged on behalf of the defence should have been examined by the prosecution, Rambirich and Harihar have not been shown to be eye-witnesses. The former only gave certain information to the Sub-Inspector which gave him the clue that Arjun was an eye-witness. Arjun was then traced out and examined in the case. Harihar was outside the house and did not see the occurrence. Therefore, Rambirich and Harihar were not material witnesses to the case. As to the third person, namely, Ram Partap, he was undoubtedly, according to the evidence of Arjun, in the verandah of the house when the occurrence took place and in fact Arjun had gone to demand payment from him and actually saw him in the verandah of the angan where the occurrence took place. Ram Partap, therefore, must have seen the occurrence. Ordinarily, therefore, he should have been examined on behalf of the prosecution. However, the Sub Inspector suspected that he was tampering with the evidence of the three girls, namely, his daughters and niece and this led the Sub-Inspector to have the statements of the girls recorded u/s 164, Criminal Procedure Code. In the Sessions Court the girls resiled from their statements and this was evidently due to Ram Prataps influence, and so Ram Partap was not expected to tell the truth. Therefore, this is a reasonable ground for the prosecution not to have examined him. I think that in spite of this it would have been much better if Ram Partap had been examined and from his statement the Court would have probably received the assistance which the evidence of Musammat Musan, wife of the accused, as pointed out in the earlier part of this judgment has afforded to the Court in respect of the fact that she was concealing the name of the real assailant, namely, her husband. However, as there were reasons for the prosecution to treat Ram Partap as an untruthful witness, the trial is not vitiated. The result is that I agree that the conviction of and the sentence passed on the appellant be upheld.