T.N.R. Tirumalpad, J.C.
1. This is an appeal by the State Under Section 417, Criminal P. C, against the judgment of the learned Sessions Judge in Sessions Trial No. 8 of 1958 dated 6-12-1958 by which he acquitted the three respondents of the charges Under Section 302, 1. P. C, against the first respondent and Under Section 302 read with Section 109, IPC against respondents 2 and 3.
2. The ease of the prosecution in the lower Court was as follows:
On the morning of 17-6-1957, H. Munal Singh of village Huikap (since deceased) went to his field for ploughing it. Yaima Singh, Jatra Singh, W. Ibotombi Singh, N. Yaimabi Singh and L. Apabi Singh who were P.Ws. 1 to 5 in the Sessions Court had also, been taken by the said Munal Singh to assist him in ploughing the land. While the ploughing was going on, the three accused persons along with one Ibomcha Singh (D. W. 3 in the Sessions Court) went to the place armed with Dao and sticks.
The first accused Sidhu Singh (the first respondent herein), who was an influential man of the village challenged the right of Munal Singh to cultivate the land and then assaulted Munal Singh on the head with the Dao, he was carrying and when Munal Singh was running after receiving the blow, the other three persons accused 2 and 5 and D. W. 3 also assaulted him with sticks.
P.Ws. 1 to 5 were said to have witnessed this occurrence, Munal Singh sustained injuries and fell down. P.Ws. 6, 9 and 12 were said to have arrived at the scene of occurrence immediately after-Wards and seen Munal Singh lying injured in an unconscious state and to have seen the accused persons in the field. Then Munal Singh was carried by P.W. 9 to the house of his father-in-law (P.W. 8). From the house of P.W. 8 Munal Singh was carried to the Police Station by his brother P.W. 7 who then lodged the F. I. R. at about 3-20 p. m.
P.W. 14, the S. I. of Police recorded the F. I. R. and registered a case Under Section 326, IPC and sent Munal Singh to the Imphal Hospital, The case was made over to the S. I. of Police (P.W. 16) for investigation. At the hospital an operation seems to have been performed by one of the Surgeons on the skull of Munal Singh to remove a piece of bone, which was broken. The Surgeon, who performed the operation was not examined in the Sessions Court. Munal Singh died of the injuries without regaining consciousness at the hospital on 20-6-1957.
After his death the case was coverted into one Under Section 302, IPC The three accused persons and D, W. 3 were arrested and a charge-sheet was filed against them Under Section 302, IPC
3. In the Committal Court, the eye-witnesses P.Ws. 1 to 5 were examined. Of them, all except W. Ibotombi Singh (P.W. 2 in the Committal Court) gave evidence that the first respondent Bidhu Singh stabbed the deceased with a Dao and that respondents 2 and 3 gave several blows to the deceased after ho was stabbed by Bidhu Singh, W. Ibotombi Singh was declared hostile and cross-examined by the prosecution in the Committal Court. The Committing Magistrate committed the three respondents to the Sessions Court to take their trial Under Section 304, IPC and he discharged M. Ibomcha Singh (D, W. 3) for want of evidence against him.
4. In the Sessions Court a charge Under Section 302, IPC was framed against the first respondent Bidhu Singh, while a charge Under Section 302 read with Section 109, IPC was framed against respondents 2 and 3. The 3rd respondent was the son of the first respondent, while the second respondent was the nephew of the first respondent,
The plea of the first respondent was that he was ploughing the field in question that morning and Munal Singh and the five other persons came there and asked him not to plough the land. Then there was a scuffle between him and Munal Singh. The companions of Munal Singh aimed blows with their sticks on Bidhu Singh, but the said blows missed and fell on Munal Singh causing the injuries. The other two accused persons denied their presence at the place of occurrence.
5. It was on the statement given to the Police by P, Ws. 1 to 5 who were eye-witnesses to the occurrence, that the three respondents were arrested and charged before the Magistrate for the murder of Munal Singh. When W. Ibotombi Singh was however examined before the Committing Magistrate as P.W. 2 and when P.Ws. 1 to 5 were examined in the Sessions Court they did not stick to the story they had given to the Police.
W. Ibotombi Singh stated in the Committing Court that when he and P.Ws. 1, 2, 4 and 5 and Munal Singh were in the field, the 3 accused persons along with M. Ibomcha Singh (D. W. 3) came to the field and the first accused Bidhu Singh asked Munal Singh not to plough the field, but tnat Munal Singh said that he would plough the field and that while they were having this altercation, the witness left the field.
The prosecution treated this witness hostile even in the Committing Court and cross-examined him with reference to the version given by him to the Police. He admitted in the cross-examination that he told the Police that the 4 accused persons (there were four accused in the Committing Magistrate's Court) came to the field while they were ploughing, but in every other respect he denied what he had stated to the Investigating Officer.
He denied that he told the Police that the accused were armed with weapons, that first respondent Bidhu Singh had a Dao, that the second and third accused had sticks, that Munal Singh replied to the first respondent that he was ploughing the field as a tenant of one Rahmat Mia, that Bidhu Singh stabbed Munal Singh on the fore-head, that Munal Singh ran after receiving the blow, that the other accused gave blows to Munal Singh while he was running, that Munal Singh fell down as a result of assault and that the first accused Bidhu Singh threatened them with a Dao and so they did not dare to intervene.
Thus he denied altogether that he was an eyewitness to seeing the first accused Bidhu Singh giving the blow with the Dao to Munal Singh and to the accused 2 and 3 beating Munal Singh with sticks when he was running away after receiving the blow on the head. The prosecution brought out in the cross-examination before the Committing Court that this witness was a friend of the 3rd accused Chinglen Singh, who is a son of the first accused Bidhu Singh, that the witness had met the said Chinglen Singh after the latter was released on bail and that even on the day of examination before the Committing Court he had met the said Chinglen Singh.
It was also brought out that the accused persons were influential and as such the villagers were afraid of giving evidence against them. When this witness was examined as P.W. 3 in the Sessions Court, he went back to some extent on what he had stated even in the Committing Court. He was allowed to be treated as hostile in the Sessions Court also and the prosecution in cross-examination put to him the statements he had made to the Police.
But he denied having made those statements. He even denied that he had told the Committing Magistrate that the accused were influential persons and as such the people of the village were afraid of giving evidence against them or that the 3rd accused Chinglen Singh was his friend. To Questions put on behalf of the accused persons, he gave obliging answers and said that Munal Singh had a Dao when he was talking with Bidhu Singh and that he saw Munal Singh holding the Dao.
He even went to the length of saying in his anxiety to help the accused persons that the Police did not read his statement after recording it and that even the Committing Magistrate did not read out the statement recorded by him. He further said that the Police Officer present in the Committing Court interpreted the statement of the witness in a different language to the Magistrate.
It may be mentioned here that the Committing Magistrate himself is a Manipuri and there was no necessity to interpret the witnesses statement in another language to the Magistrate by any person. The evidence of the witness showed conclusively that he was out to support the accused persons at any cost.
6. When P.Ws. 1, 3 and 5 were examined in the Sessions Court, they also went back on the version regarding the incident given by them to the I. O. and to the Committing Magistrate. P.W. 1, W. Yaima Singh who was also P.W. 1 in the Committing Court had told the Committing Magistrate that Munal Singh cultivated the land as tenant of one Rahmat Mia, that on the day in question Munal Singh along with P.Ws. 1 to 5 started ploughing the land, that then the three accused persons and Ihomcha Singh (P.W. 3) came to the field, that the first accused Bidhu Singh had a Dao while accused 2 and 3 had sticks, that at that time w Munal Singh alone was ploughing while P.Ws. 1 to 5 were taking rest and smoking, that Bidhu Singh asked Munal Singh why he was ploughing the field and Munal Sin eh replied that he was doing so as the tenant of Rahmafr Mia, that then all on a sudden Bidhu Singh stabbed Munal Singh in the fore-head with the Dao, that the injured person ran four or five fathoms, that while running accused 2 and 3 chased him and gave several blows with their sticks, that Munal Singh fell down, that when P.Ws. 1 and 5 attempted to intervene Bidhu Singh threatened them with the Dao in his hand, tha: thereupon they raised an alarm and P.W. 6'came to the land and that P.Ws. I to 5 then left the place through fear.
This evidence of P.W. 1 before the Committing Court clearly implicated the first accused in assaulting the deceased with the Dao on the fare- head and accused 2 and 3 with beating him with Sticks while he was running after receiving the blow. But he completely went back on this evidence in the Sessions Court and he was permitted to be cross-examined by the prosecution.
In cross-examination his statements before the Committing Court and before the I, O. were put to the witness. He denied having made such statements, but he admitted that Bidhu Singh was a rich and influential man in the locality. His statement before the Committing Court was put to him and he admitted having put his thumb impression on the said deposition.
When, however, he was cross-examined on behalf of the defence he said that the Police did not record his statement, but that some statement was read out before him and he was asked to depose according to that statement before the Committing Court. The Sessions Judge, then asked him whether he stated to the Committing Court that he had been tutored to give evidence before that Court and he admitted that he had not stated so, but he obligingly stated in answer to the defence lawyer that he had told the I. O. that he would not depose . in the manner in which I. O. wanted him to depose and that the I. O. threatened that if the witness did not do so he will be put in jail.
He even said that the Prosecuting S, I. read out to him the statement prepared by the I. O, and asked him to depose in accordance with that in the Committing Court threatening that if he did not do so he will be put in jail. He further said that he deposed before the Committing Court In Manipuri and the P. S. I. translated jit to the Magistrate in a language not known to him.
It may be stated that the Committing Magistrate himself is a Manipuri and there was no need to translate in any other language. The witness also said that he asked the P. S. I. to read out the statement to him, but that the gentleman said that he had no time to do so. He gave further answers in support of the defence that until the day before the date of occurrence the accused persons were cultivating the land, that Munal Singh went to the land on the day in question when the accused persons were cultivating it, that Munal Singh went and pushed Bidhu Singh (the first accused), who was cultivating and began to aim blows on Bidhu Singh which the latter warded off.
A careful reading of the answers given by this witness to questions put by the defence will show that the said answers were tutored. He was accepting whatever was put into his mouth by the defence. The only occasion when he did not accept the defence suggestion was when the defence case was put to him that in the course of the fight between Munal Singh and Bidhu Singh, P.Ws. 1 to S aimed blows at Bidhu Singh, which fell on the head of Munal Singh causing the bleeding injuries. The witness, of course, denied the suggestion, evidently as it sought to implicate him in the offence. But he was so much interested in the defence that he even went to the length of saying that when he said in examination-in-Chief that Bidhu Singh was an influential person, he only meant that he was a good man and that there were many persons in the village possessing similar status as Bidhu Singh.
He even gave a certificate to the accused persons that they were not quarrel some persons. It was clear from the evidence given by P.W. 1 that he had deliberately changed the version given by him to the I. O. and to the Committing Magistrate and that he was bent on supporting the accused persons in every possible way, short of implicadng himself in the offence.
7. The same pattern is found repeated when we come to P.Ws. 4 and 5. P.W. 4, N Yaimabi Singh had given an exactly similar statement to the Police and deposed before the Committing Magistrate as P.W. 1 had done. He had stated before the Committing Magistrate that P.Ws. 1 to 5 and Munal Singh were ploughing the field that day when the accused persons came to the field with ploughing instruments, that Bidhu Singh had a Dao and the other accused had sticks, that at the time P.Ws. 1 to 5 were resting and smoking and Munal Singh was ploughing, that then Bidhu Singh challenged the authority of Munal Singh to plough the field, that he stabbed Munal Singh on the head with the Dao in his hands, that while Munal Singh was running after receiving the wound accused 2 and 3 gave him several blows with their sticks, that P.Ws. I to 5 could not stop them as they were threatened by Bidhu Singh with the Dao, that they raised an alarm and P.W. 6 came to the field and P.Ws. I1 to 5 left the place for fear of their lives.
In the Sessions Court he went back on this evidence completely and said that when the accused persons came to the field that morning he did not see any weapons in their hands, but saw only the ploughs and bullocks with them, that a quarrel ensued between Munal Singh and Bidhu Singh and that the witness then told Munal Singh that he would not remain in the land to take part in the quarrel and left the place with his bullocks, and did not know what happened thereafter.
The prosecution cross-examined the witness after treating him as hostile and put to him his statement in the Committing Court as well as to the Police, but he denied in toto what he had stated to the I. O. and the Committing Magistrate. This witness also gave accommodating answers to the defence lawyer and the I. O. who recorded the statement did not read it over to him, that in the Committing Court his answers were interpreted by a Police Officer to the Committing Magistrate in a language which was not Manipuri and that the statement recorded by the Committing Magistrate had not been read over to him. These answer which resembled those of P.W. 1 appeared to be pre-arranged ones.
There is no doubt that this witness also was out to support the accused persons in the course of the trial in the Sessions Court,
8. P.W. 5, L. Apabi Singh had supported the evidence given by P.Ws. 1 and 4 in the Committing Court by saying 'hat when they were cultivating Munal Singh and P.Ws, 1 to 5 were cultivating the field that day and P.Ws. 1 to 5 were resting and smoking while Munal Singh continued the cultivation, that the accused persons came to the field with ploughing instruments, that Bidhu Singh had a Dao and the others had sticks, that Bidhu Singh challenged Munal Singh about his authority to cultivate and all on a sudden, Bidhu Singh stabbed Munal Singh in the fore-head, that Munal Singh ran for some fathoms and the witness ran home through fear after raising an alarm.
In the Sessions Court, he admitted going to the field to help Munal Singh in his cultivating along P.Ws. 1 to 4 and he also admitted that the accused arrived in the field with plough and bullocks at the time and challenged the authority of Munal Singh. But on the most important points, namely, that Bidhu Singh was armed with a Dao and accused 2 and 3 with sticks and that Bidhu Singh stabbed Munal Singh on the fore-head, this witness went back in the Sessions Court and said that there was some exchange of words between Bidhu Singh and Munal Singh and seeing the quarrel the witness left the place and did not know what happened.
He was also treated as hostile by the prosecution and cross-examined and his evidence before the Committing Court as well as his statement before the Police were put to him and as expected he completely denied having made such statements and in answer to questions put by the defence he said that the I. O. read over his statement to him in English and that when he deposed in Court before the Committing Magistrate a Police Officer interpreted his answer to the Committing Magistrate in a language which was not Manipuri and that his statement was not read over to him at all in Committing Court.
There is no doubt that the latter part of the statement must be false as the Magistrate himself knew Manipuri language. Such deliberately false evidence only showed that this witness again had come prepared to give false evidence in the Sessions Court in order to support the defence.
9. The only other eye-witness to the occurrence was P.W. 2, Jatra Singh. P.W. 2's evidence was as follows: While he and P.Ws. 1 and 8 to 5 and Munal Singh were ploughing the land, the accused persons came to the field, each of them with a pair of bullocks and yoke, that then Bidhu Singh had some talk with Munal and they began to Quarrel and a fight took place between them and both fell on the ground. Bidhu first assaulted Munal with a Dao on his fore-head.
On receiving that blow Munal ran a little. Accused 2 and 3 were then standing at a distance of 2 to 3 fathoms. Bidhu again assaulted Munal with the handle of the Dao and then it was that Munal fell down and then the witness ran away out of fear. Though the evidence of this witness in the Sessions Court was to some extent different from the evidence given by P.Ws. 1, 4 and 5 in the Committing Magistrate's Court and evidently from the witness's own evidence in the Committing Court, the prosecution did not treat him as hostile, probably because, the fact of Bidhu's hitting Munal on the fore-head with the Dao was admitted by this witness unlike P, Ws. 1, 3, 4 and 5.
In the cross-examination of this witness by the defence he also tried to support the defence. Actually the cross-examination by the defence took place more than a month after his examination-in-Chlef as the defence applied for an adjournment. In the cross-examination he said that he saw Munal and Bidhu fighting, that he cannot say, who gave the first blow, that they fell down one upon the other and rolled on the ground, sometimes Munal being on the ground and sometimes Bidhu being on the ground, that at that time neither of them had any weapon in their hands and that while they were thus rolling the witness left the place.
He also said that he did not see accused 2 and 3 assaulting Munal. This evidence was, of course, intended to help the defence to prove that Bidhu could not have given the injury on the head to Munal. Actually the Court had to intervene at that stage and the witness said that Munal got the Dao injury before he fell down.
The witness still tried further to help the defence by saying in answer to further defence questions that he could not say what sort of Dao it was '' or in which hand Bidhu Singh had the Dao and that when Munal got the bleeding injury Bidhu and Munal had caught each other. Any way it was clear from the evidence of this witness that it was Bidhu who gave the blow to Munal with the Dao on the fore-head before Munal fell down.
This witness had no doubt spoken about a fight between Munal and Bidhu, which is not seen to the evidence given by P.Ws. 1, 4 and 5 in the Committing Court.
10. It may be mentioned here that the- accused persons were on bail when the Sessions Trial began. The first accused Bidhu Singh was, according to P.W. 1, an influential man of the village. P.W. 3 had said in the Committing Court that the accused were influential persons and as such the villagers were afraid of giving evidence against them. When the Sessions trial began and the prosecution found that P, W. 1 went back completely on his evidence in the Committing Court and that even P.W. 2 in his examination-in-chief did not stick to the story given by him in the Committing Court, the prosecution applied for cancellation of bail on the ground that the accused per- , sons were influential and had already gained over some witnesses and that if they were allowed to remain at large they would further tamper with the witnesses,
The Sessions Judge thereupon cancelled the bail. The accused took the matter to the Court of the Judicial Commissioner and my learned predecessor refused to grant bail to Bidhu Singh and Rajmani, accused 1 and 2, but allowed to the 3rd accused as he was only a young boy and could not be expected to tamper with evidence. It was in these circumstances that the trial went on before the Sessions Court.
11. As already stated, the prosecution treated P.Ws, 1, 3, 4 and 5 as hostile in the Sessions Court and they were permitted to be cross-examined with reference to the statements made by them l in the Committing Court. I find from the depositions that particular portions in the evidence before the Committing Magistrate, as well as from the statements made by them to the I. O. were put to the witnesses for the purpose of contradicting their statements in the Sessions Court and the Sessions Judge has taken care to mark those portions m the said evidence and in the said statements when they were put to the witnesses.
The accused persons were given full' opportunity to cross-examine the said witnesses. But ft did not read like cross-examination, but like willing answers in accordance with the suggestions made to them. I find from the Sessions Judge's order paper that the evidence of P.Ws. 1, 3, 4 and 5 before the Committing Magistrate was tendered by, the prosecution for formal marking, only after the prosecution closed its evidence and they were admitted in evidence by the Sessions Judge Under Section 288, Criminal P. C, and then he examined the accused Under Section 342, Criminal P. C, and recorded their statements.
12. Here itself I may dispose of one objection raised on behalf of the respondents. It was urged that the evidence given by P.Ws. 1, 3, 4 and 5 before the Committing Court should not have been received in evidence by the Sessions Judge1 after the prosecution closed its case, but that they ought to have been tendered when the said witnesses were in the witness-box so that the accused persons could have the benefit of cross-examining them with reference to those statements and that this opportunity having been denied to the accused, the said depositions should not have been received Under Section 288, Criminal P. C, or treated as evidence in the case,
I see no merits at all in this objection. It is clear from the proceedings of the trial before the Sessions Judge that the evidence given by P.Ws. 11, 3, 4 and 5 in the Committing Court was available for their cross-examination by the accused , persons. If we peruse the said evidence, it will be seen that the accused persons had really no questions to put to the witnesses on the basis of tie said evidence except to make them say that it was not read out to them by the Magistrate and that their answers were translated to the Magistrate by a Police Officer in a language other than Manipuri.
The cross-examination of P.W. 2 by the accused persons also showed that his evidence in the Committing Court was used by them for the purpose of cross-examination. So their present plea that the said evidence was not available to them when P.Ws. 1, 3, 4 and 5 were examined cannot be accepted even for a moment. The order of my learned predecessor dated 21-8-58 in the bail application which was passed after the evidence of P.W. 1 was taken, but before the rest of the witnesses were examined will itself show that the deposition of P.W. 1 in the Committing Court had already been transferred Under Section 288 Cr.PC. as substantive evidence.
Thus though the formal tendering was done and the acceptance as substantive evidence was made only at the end of the prosecution evidence, It had been made available to the defence even at the time when the witnesses were on the box. So there is no point in this contention of the respondents.
13. Now the effect of transferring the said evidence under Section 288 was to treat it as evidence in the Sessions case for all purposes subject of course, to the provisions of the Indian Evidence Act. The effect of treating it as substantive evidence is that we have the evidence of 3 witnesses, namely, P.Ws. 1, 4 and 5 which would go to show as far as the first accused Bidhu Singh is concerned that he along with accused 2 and 3 went to the field where Munal Singh along with P.Ws. 1 to 5 were ploughing, that he was armed with a Dao while accused 2 and 3 were armed with sticks and that he hit Munal Singh on the head with the Dao causing bleeding injuries which ended in his death.
The evidence of P.W. 3 Ibotombi Singh in the Committing Court where he was examined as P.W, 2 will not support the prosecution. But that evidence shqwed that the accused persons were influential and that the people in the village were afraid of giving evidence against them. It gives us the clue why the P.Ws. were all going back on the statements given by them to the Police and the evidence given by them in the Committing Court. In fact, the accused were on bail at the time and had every opportunity to tamper with the evidence if they so chose.
Thus even though P.W. 3 W. Ibotombi Singh gave evidence against the prosecution in the Committing Court and in the Sessions Court, we know the reason for such change of front on his part. Hence, his evidence in the Sessions Court even-though it was hostile to the prosecution cannot have the effect of taking away the value of the substantive evidence given by P.Ws. 1, 4 and 5 to the Committing Court to which reference has already been made by me.
14. If we peruse the evidence of P.W. 6 who was not an actual eye-witness, but who arrived as the scene of occurrence shortly afterwards on hearing the alarm raised by P.Ws, 1 to 5 we would see to what lengths the accused persons would go in-tampering with the evidence of witnesses. He also had to be treated as hostile by the prosecution and to be cross-examined with reference to the statement made by him to the Police.
He had stated to the Investigating Officer that he saw P.Ws, 1 to 5 and Munal Singh ploughing; the field at 7-00 a.m. on that day, that when he-arrived on the scene on hearing the alarm, he saw Munal Singh with bleeding injuries and along with the two other accused who held sticks and that it was he who threw away the Dao held by Bidhu by snatching it from his hand thinking that he might again assault as he was in a bad tamper.
All these statements were denied by him in the Sessions Court. His answers in cross-examination by the accused persons further showed that he-was out to support the accused persons in every possible way, He even said that the Police took his statement by threat of force. The suggestion made to the Investigating Officer (P.W. 16) by the defence was that he fabricated the statements of witnesses without actually examining them and that the Police had threatened the witnesses to give statements suiting the prosecution.
It will be seen that the two suggestions are themselves contradictory. Why the police should' be so anxious to procure false evidence against the accused was not attempted to be explained.
15. The learned Sessions Judge appeared to-be quite correct in his conclusion that the witnesses P.Ws. 1 and 3 to 6 had uttered a series of lies in his Court accepting whatever was put into their mouth by the defence lawyer and that the circumstances indicated that they had been gained-over by the accused persons. It is a clear case where the accused persons thought that they could succeed in getting a verdict favourable to them only by tampering with the P.Ws.
It is mainly to prevent such a contingency] that Section 288 Cr.PC. has been enacted. It is indeed surprising that the learned Sessions Judge who' acted very correctly in admitting the evidence under Seciton 288, Cr.PC did not pursue the matter further and see whether the said evidence was reliable and could be acted upon.
16. P.Ws. 1, 4 and 5 had given almost similar statements to the Police as well as in the Committing Court implicating the first accused, as shown by me already. Only P.W. 5 did not state in the Committing Court that accused 2 and 3 dealt blows on Munal Singh with their sticks when he was-running after receiving the head injury from Bidhu. Singh.
The accused persons had every opportunity of cross-examining P.Ws. 1, 4 and 5 in the Committing Court. But it is evident that their strategy was different and they thought it will be better and easier to win over the witnesses before they were examined in the Sessions Court instead of testing their evidence by cross-examination. The learned Sessions Judge failed to consider this aspect of the matter.
He was over-burdened by the fact that the witnesses had gone back on their evidence when examined before him and had thereby proved themselves to be utter liars, with the result that he thought it was not possible for him o find out what actually took place on that day and how the unfortunate Munal Singh received the injury which caused his death. He therefore remarked that it will remain a mystery and the charges against the accused will remain unsubstantiated.
17. If the evidence of P.Ws, 1, 4 and 5 in the Committing Court can be accepted then the cause of Munal's injury need not at all remain a mystery. The only question is whether their evidence can be accepted. It is true that we have to (be particularly guarded in accepting such evidence, as the witnesses themsrJves have retracted and is we are now dealing with this matter in an appeal against acquittal.
We should not interfere in such an appeal merely because we would have come to a different conclusion if the said evidence was before us, There is also the added fact that in criminal cases there is a presumption of innocence of the accused until they are proved guilty. We must also bear in mind that on the evidence adduced before the Sessions Judge he has said that the case has not been proved. So the position of the accused is further fortified.
We cannot lightly interfere with such an acquittal, unless it is shown by the appellant that the Sessions Judge has obviously gone wrong in his appreciation of the ease or that he has failed to consider material evidence adduced before him, in coming to his conclusion and that his finding cannot at all be supported on the evidence in the case.
18. In the light of what I have stated above we shall examine the judgment of the Sessions Judge.
19. The Sessions Judge was satisfied as seen from paragraph 8 of his judgment that P.Ws. 1 to 5 who had supported the prosecution ease before the I. O. and the Committing Magistrate suppressed the truth when they were examined before him and not only gave false evidence, but were prepared to accept whatever was put into their mouths by the defence. Then he considered in detail the evidence given by P.Ws. 1 to 5 before him in paragraphs 9 to 13 of his judgment.
The statement of the said witnesses before him that the Investigating Officer had not recorded their statements, but merely read out some statements and threatened them to depose in the same fashion in the Committing Court, were considered by the Sessions Judge to be absurd. He concluded from their evidence before him that P.Ws, 1 to 5 did not have any regard for truth. Then he went on to consider the prosecution suggestion that they were fained-over by the defence and he felt quite satisfied that the said prosecution suggestion was quite true.
The learned Sessions Judge was so convinced that the witnesses, were giving perjured evidence foxfire him that he has directed their prosecution Under Section 193 IPC
20. Having been thus satisfied that the witnesses were deliberately uttering false-hood in order to help die defence when they deposed before him and having admitted in evidence the depositions given by these witnesses in the Committing Court, the learned Sessions Judge, ought to have proceeded to consider the said evidence and see how far that evidence could be relied upon in support of the prosecution case. His judgment reveals that he adopted a quite different course. He came to the conclusion that the effect of the failure of P.Ws, 1 to 5 to support the prosecution case was that the charges against the accused persons remained unsubstantiated. Without even adverting to the evidence which he himself had admitted as substantive evidence, the learned Sessions Judge said that in view of the character of the stud witnesses and the fact that they had absolutely no regard for truth it would be unsafe to act upon their statements made before the Committing Magistrate. In my opinion, the learned Sessions Judge was substantially in error in dismissing the said evidence in that fashion. Particularly when he was satisfied that the witnesses were won over by the defence when they gave evidence before him and that the defence suggestion that the Investigating Officer threatened them to support the prosecution on pain of their being implicated in the case themselves was absurd, it must have been clear to him that the P.Ws. had given a true version to the Police and to the Committing Magistrate. The blatant -change of front on their part in the Sessions Court was no reason at all to ignore the evidence given by them in the Committing Court. As there has been a total failure on the part of the Sessions Judge to deal with the evidence before the Committing Court, admitted by him Under Section 288 Cr.PC we have to hold that his finding was not based on the evidence before him. We have therefore to consider the said evidence in this appeal.
21. A lot of evidence was let in before the Sessions Court about the possession of the land where the occurrence took place. It was the case of the prosecution that the said land originally belonged to one Madhu Singh (P.W. 13) and that P.W. 10 (Rahmat Mia) purchased the land about 2 years before the date of occurrence from the said Madhu Singh in the name of his grand-son Manir-uddin (a minor) and that P.W. 10 who continued in possession of the land gave it on rent or lousily to the deceased Munal Singh, who was thus cultivating the said land for two years before the occurrence.
The defence case on the other hand was that in 1951 the grand-father of D.W. 3 M. Ibomcha Singh (the 4th accused before the Committing Court who was discharged in the said Court) had purchased the land by an oral sale from P.W. 13 and that D.W. 3 and the first accused Bidhu Singh were in possession of the said land ever since. It may be mentioned here that though P.Ws. 1, 2, 4 and 5 had stated to the Police as well as in the Committing Court that Munal Singh was in possession of the land, they changed the story in the Sessions Court and said that Bidhu Singh was in possession of the said land until the date of occurrence and that Munal Singh started the cultivation of the land only on the date of occurrence. It may also be mentioned that P.W. 13 Madhu Singh denied the defence suggestion that the land had been orally sold to the grand-father of D.W. 3.
22. After all, the question of actual possession of the land before the date of occurrence is not Very material in this case. It would have been relevant if the case of the defence was that Bidhu Singh and accused 2 and 3 acted in the exercise of private defence of property. But the case of Bidhu Singh was one of total denial that he gave the blow with the Dao to Munal Singh and the case of accused 2 and 3 was that they were not present at all on the scene of occurrence.
The learned Sessions Judge seems to have been influenced to some extent as seen from paragraph 13 of his judgment by the denial of P.Ws. 1 to 5 that Munal was in possession of the land on the date of occurrence and with their statements that the accused were in possession and had ploughed and prepared the land for cultivation. The only evidence on the side of the defence in support of their case that Bidhu Singh and D. W. 3 were cultivating the land on the day in question was that of D. W. 3, who was, as I said, one of the accused persons in the Committing Court.
It turned out however from his evidence that on that day Munal Singh and his party also cultivated the land for some time simultaneously with Bidhu Singh and D. W. 3 and that the assault and the scuffle took place subsequently. It is clearly impossible that both parties would have simultaneously cultivated the land for some time as the party who began cultivation first would not have permitted the other party also to cultivate in thet very nature of things.
That evidence of D. W. 3 was thus an indication that really Munal Singh and his paty were doing the cultivation on that day and that Bidhu Singh and his party must have entered the land later. Even in the Sessions Court, P, W. 1 said that Bidhu Singh and his party came to the land while Munal Singh and P.Ws. 1 to 5 were cultivating it, though in cross-examination by the defence he obligingly changed the story and said that Munal Singh went to the land when the accused persons were cultivating. This latter evidence was clearly false, because, according to this witness himself, Munal Singh was already in the land when he arrived there. So he cannot have seen Munal Singh entering the land when the accused were cultivating. P.Ws. 2 to 5 also stated in the Sessions Court that Munal Singh and his party were ploughing when the accused persons came there.
It was thus clear beyond any doubt that on the clay of occurrence Munal Singh and his party were ploughing the land first and that it was the ac- cused and his party who came and objected to the said ploughing. We are not concerned with the possession prior to the date of occurrence,
23. It is not disputed that Munal Singh got his head injury on the day of occurrence in that field in the presence of P.Ws. 1 to 5, when the accused Bidhu Singh and D.W. 3 were also present. The question is under what circumstances Muna Singh got the injury. It is clear that the evidence of P.Ws. 1, 3, 4 and 5 in the Sessions Court that they had left the place before Munal Singh got the injury was utter falsehood.
Even, the defence of the accused Bidhu Singh is that P.Ws. 1 to 5 were aiming blows at him and that they missed him and the blows fell on the head of Munal Singh. This defence in any case showed that, to the knowledge of Bidhu Singh, P.Ws. 1 to 5 were present when Munal Singh got the injury. This is an additional circumstance to show that P.Ws. 1 and 3 to 5 were deliberately giving false evidence in the Sessions Court, to the knowledge of the defence and that too in an effort to support the defence.
We have therefore got to fall back on the evidence of the said witnesses in the Committing Magistrate's Court and also to the statements made by them to the I. O. which were put to them to contradict their evidence. When it is once established that they were won over by the defence and so gave false evidence in the Sessions Court, we have not only no reason to reject their evidence given earlier, but every reason to act on it.
24. It is clear from the said evidence of P.Ws. 1, 4 and 5 in the Committing Court that it was Bidhu Singh who dealt the blow with the Dao on the head of Munal Singh. This is again clear from the statement given by P.W. 3 to the Investigating Officer. Thus we have the statements of 4 persons, at a time when they were not under the influence of the defence to show that it was Bidhu Singh (1st accused) who came to the field with a Dao in his hands and who dealt the blow with the Dao to Munal Singh. Even P.W. 2, who did not completely go back on the evidence he gave in the Committing Court stated in the Sessions Court that it was Bidhu Singh who dealt the blow to Munal Singh. According to P.W. 2, Bidhu Singh dealt a second blow to Munal Singh with that handle of the Dao. He even brought in the story of a fight between Munal Singh and Bidhu Singh and both of them falling on the ground and rolling, which was not spoken to by P.Ws. 1, 4 and 5.
But his evidence clearly showed that the blow was dealt by Bidhu Singh before Munal Singh fell down. It is quite possible that there might have been a, scuffle between them, as such marks of a scuffle were seen on the ground by the Investigating Officer who prepared the sketch.
25. In any case, it is clear beyond any doubt from the evidence of P.Ws. 1, 2, 4 and 5 and from the statement given by P.W. 3 to the Police ttiat Biuliu Singh had a Duo in his hands and that he dealt the blow to Munal Singh with the Dao. The defence, no doubt is that Bidhu Singh did not carry a Dao at all and that he had only a small stick for driving bullocks. P.Ws. 1, 3, 4 and 5 also attempted to help the defence in the Sessions Court by saying that they did not see any Dao in his hands. But that evidence was certainly procured evidence. In this connection it is interesting to note that in the Committing Court, Bidhu Singh did not deny in his statement recorded Under Section 364 Cr.PC. that he carried a Dao with him on that day, even though in the question put to him, the evidence of the witnesses that he was carrying a Dao was specifically put to him. On the other hand, his reply to the question was that he did not stab Munal Singh with his Dao, thereby in a way admitting that he was carrying a Dao on that day. It was only in the Sessions Court that he said that he was carrying only a small stick for driving the bullocks. It is again tell-tale that he stated in the Committing Court that he did not know how Munal Singh received the injuries, while in the Sessions Court he was positive that Munal Singh's companions aimed stick blows at him, but that the blows missed him and fell on Munal Singh, His attempt was to explain that P.Ws. 1 to 5 caused the injuries to Munal Singh.
These contradictions in the statements of Bidhu Singh only indicate that he was trying to suppress that he was carrying a Dao and that he was trying to embellish his story in the Sessions Court to hide the fact that he dealt the blow.
26. In the same connection, the statement given by P.W. 6, who came to the scene of occurrence tamedialely afterwards is also very relevant. He had also to be treated as hostile by the prosecution and cross-examined. A perusal of his evidence shows the same pattern as in the case of P.Ws. 1 and 3 to 5 and there can be little doubt that he had also been won over by the defence.
He stated to the Police that when he arrived On the scene of occurrence he found Bidhu Singh with accused 2 and 3 standing near Munal Singh who had a bleeding injury on the head, that Bidhu Singh was holding a Dao and that the witness snatched the Dao from Bidhu Singh and threw it away for fear that he might again assault Munal Singh in his then bad temper. This statement of P.W. 6 to the Police cannot be totally excluded even though he denied it in the Sessions Court.
We have again, the evidence of P.W. 12 that while he was irrigating his field on that day he heard a shout from P.W. 6 saying that men were fighting and he ran to the place of occurrence and saw Munal Singh lying on the ground unconscious with a bleeding injury on his fore-head and saw the 3 accused sitting at a distance of about 40 yards from the place where Munal Singh was lying. P.W. 6 was also in the field and P.W. 12 asked P.W. 6 how Munal received the injury and he was told that it was in the course of fighting with accused persons.
This evidence of P.W. 12 clearly showed that P.W. 6 was giving false evidence in the Sessions Court and trying to suppress the truth, evidently because he had been gained over by the accused who were influential. P.W. 6's statement to the Police has therefore to be accepted in preference to his evidence before the Sessions Court. We have again the evidence of P.W. 9 L. Iboton Singh, the brother-in-law of Munal Singh who carried him from the field to the house of P.W. 8, his father-in-law.
He said that when he was working in the field, one Ibotombi Singh called him and he went to the field in question and found Munal Singh lying injured in an unconscious condition and that the 3 accused persons and D. W. 3 were also there.
27. From the evidence discussed above, there can be little doubt that the prosecution case that while Munal Singh and his party were ploughing the land, accused 1 to 3 went to the place, accused 1 armed with a Dao. and accused 2 and 3 with sticks, that there was an altercation between Munal Singh and Bidhu Singh and that accused 1 dealt the blow with the Dao on the fore-head of Munal' causing the bleeding injury and that Munal Singh fell down. It is also quite possible that there was a scuffle between Bidhu Singh and Munal Singh before the blow was dealt. The learned Sessions Judge certainly failed to consider the evidence on record before he came to the conclusion that the prosecution case has not been proved. Courts are not so helpless when prosecution evidence is tampered with by the defence and it is for helping the Courts to arrive at the truth and for doing justice that we have Section 288 in the Criminal Procedure Code. The very attempt on the part of the defence to tamper with the prosecution evidence in the Sessions Court which has been proved in this case beyond any doubt, in a way indicated that the evidence given by the P.Ws. in the Committing Court contained the true version of the incident. If those witnesses were speaking falsehood before the Committing Magistrate then the attempt on the part of the defence would not have been to tamper with them, but to establish the falsehood by a thorough cross-examination of the witnesses. What the defence did in this case was to make the witnesses state in the Sessions Court whatever the defence wanted them to say. It is necessary to put down such tactics on the part of the accused persons with a firm hand in the interests of proper administration of justice. I cannot help remarking that the accused persons were enabled to tamper with the prosecution evidence as a result of the improper exercise of his discretion -by the Magistrate in allowing them bail when there was a prima facie case against them showing that a serious offence Under Section 302 IPC had been committed and particularly when W. Ibotombi Singh (P.W. 2 before him) had deposed before the Magistrate that the accused were influential persons and that the villagers wore afraid of giving evidence against them.
28. I am prepared to take a different view as far as accused 2 and 3 are concerned in this appeal against their acquittal. They are charged with. having given blows to Munal Singh while he was running after receiving the injury on the head from Bidhu Singh's Dao. I find that only P.Ws, 1 and 4 stated in the Committing Court that they dealt such blows, P.W. 5 did not say so in the Committing Court. No doubt P.W. 3 had stated to the Police that accused 2 and 3 gave several blows to Munal with their sticks.
But the post-mortem examination carried out by P.W. 15 Dr. B. C. Pal, did not show that there were many wounds, which could have been caused with blunt instruments like sticks. He spoke only about injury No. 2 which could have been caused by a blunt weapon. But we have the evidence of P.W. 2 that Bidhu Singh again hit Munal Singh with the handle of the Dao. So>, there is no reason to believe that the said injury should have been caused by accused 2 and 3. Then again there was evidence of a fight and one cannot say for certain that the other injuries must have been caused by accused 2 and 3.
Though their story that they were not present at the scene of occurrence is certainly false, I would prefer to give them the benefit of doubt as far as their part in dealing blows to Munal Singh is concerned. In any case, it was not such blows that caused his death, but the incised wound on tie head caused by Bidhu Singh, So in any case as far as accused 2 and 3 are concerned the order of acquittal by the Sessions Court will stand.
29. The next question will be whether the case t proved against Bidhu Singh will amount to an offence Under Section 302 IPC In any case as there is the evidence P.W. 2 that a fight had taken place and as marks of scuffle were noticed by the Investigating Officer, it is clear that the injury was given by Bidhu Singh without any premeditation in a sudden fight which took place and in the heat of passion in the course of the quarrel.
It was admitted by the Government Advocate that Dao. is an agricultural instrument used generally by Manipuris in their agricultural operations and so it cannot be said that Bidhu Singh was carrying the weapon with him with the intention''-of causing injury to any person. Thus, in any case, I cannot say that Bidhu Singh is guilty of murder Under Section 302 IPC
30. Nor can I even say that Bidhu Singh is guilty of culpable homicide Under Section 299 I. P, C. No doubt he caused the bodily injury to Munal Singh, which ultimately ended in the latter's death three days later, after he was carried from the field to the house of P.W. 8 and from there to the hospital where a surgical operation was performed on him. The doctor who performed the surgical operation was not examined by the prosecution.
When P.W. 15 — Dr. B. C. Pal, performed the post-mortem examination on the body of Munal Singh on 20-6-57, he found that a bone was absent in an area of 3 1/4'—2 1/2'' on the right temporal region. P.W. 15 deposed that the Doctor, who did the operation must have removed the bone in order to cure the person. But P.W. 15 was not present at the operation. Though normally we may take it that such operations are performed only to relieve the patient, we have really no evidence to show in the absence of the Doctor, who performed the operation that the operation itself did not contribute to the death of the patient.
The non-examination of that Doctor is certainly a lacuna in the prosecution evidence. It was even suggested to P.W. 15 that the injury itself was caused by the operation. But that suggestion is certainly too far-fetched, and is also false as the injury has been noticed by many of the Prosecution Witnesses. P.W. 15, no doubt denied that the man died as a result of the operation.
But in the face of the fact that there was an operation and a big piece of bone was removed In the course of the operation, it cannot be said for certain that the death was caused solely by the injury caused by Bidhu Singh. I cannot therefore say that Bidhu Singh is guilty even Under Section 304 IPC
31. But it is clear that the first respondent Maibam Bidhu Singh is guilty Under Section 326 IPC with having caused grievous hurt to Munal Singh with the Dao, which is an instrument for cutting and which used as weapon of offence was likely to cause death. I am quite satisfied beyond any reasonable doubt that he is guilty Under Section 326 IPC of having caused grievous hurt to Munal Singh. I would therefore set aside his acquittal by the Sessions Judge and convict him Under Section 326 IPC As for sentence, there is no doubt that he deserves a dependent sentence. I accordingly sentence him to R.I, for a period of 3 years,
32. The order of acquittal passed against respondents 2 and 3 will stand.