1. Bir Bahadur and Dal Bahadur Kharka Chetri are two brothers. Both of them were tried by the Addl. Sessn. Judge, L.A.D. at Tezpur with the help of a jury and were sentenced to transportation for life under Sections 302/34 I.P.C. on the allegation that they had murdered their co-villager Dal Bahadur Thapa Chetri in the 'dawn' of 19-5-1951 when the deceased was still in his. bed. The evidence in support of the murder comes from the deceased's wife Drunamaya (or Durnamaya) and his brother Tikaram Thapa Chetrl who lived next door.
Drunamaya says that just before the daybreak, she lighted a kerosene lamp or a 'chaki,' awoke her husband and went out to ease herself at a short distance (not exceeding seven cubits), from the house where they lived and on hearing her husband shout to his brother, she immediately hurried home and noticed coming out and running through their courtyard, almost brushing her (she says only one cubit off) - two persons, whom she recognised to be the two accused appellants and one of them carried a Khurki in his hand.
On entering the house, she found her husband lying severely injured on the neck and profusely bleeding and then she ran out and yelled: for help to which her brother-in-law Thikaram. and her mother Daimati responded - who lived next door. All the three went in, talked to Dalbahadur who was reclining on his bed leaning against the wall, asked him who were Ms assailants - and he quickly and briskly named the two accused and then expired. One Prabhuram Mahajan came a little later whom Drunamaya and Tikaram sent for and took him into confidence and divulged to him the names of the two culprits.
Tikaram then went to the thana at Sootea and lodged the First Information Report alleging that the two appellants had caused his brother's death - as he could know from the deceased himself before his death. There was no mention about Drunamaya seeing the assailants. The motive ascribed was that there was a panchayat months back at the instance of the accused on the allegation that the deceased had tried to seduce one of their wives, but there being no positive proof the panchayat only asked them to live in amity.
2. The accuseds' was a plea of not guilty and their suggestion was that Drunamaya was a woman of bad character and was carrying or with Tikaram's servant Jong Bahadur, whom she married just after her husband's death and it might be through him that she caused the murder herself and falsely implicated the accused out of sheer malice,
3. The jury returned a unanimous verdict of guilty against both the accused under Sections 302/ 34 I.P.C. and the learned Judge though delivered a charge much in favour of the accused. accepted the jury's verdict and convicted the accused as stated before.
4. The question is whether there is any misdirection, vitiating the charge and this Court can and should interfere having regard to the provisions of Section 423 (2), Criminal P.C. which runs as follows:
Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
5. The evidence in the case is purely circumstantial as there is no direct or eye witness to the occurrence. The learned Addl. Judge has discussed the details of the evidence and dealt with the discrepancies - but has nowhere said how the circumstantial evidence has to be appreciated as a whole - as whether the evidence could be explained on some, other hypothesis except that of the accuseds' guilt.
The learned Judge has pointed out that the woman Drunamaya did not tell the police that she recognised the accused on the night of the occurrence and that the story of her alleged recognition found no place in the First Information Report lodged by Tikaram with whom she had elaborate discussion before he proceeded to the thana.
6. It is not enough to speak about the discrepancies, - there should be a fitting comment on the quality of evidence coming from such persons. The old doctrine of falsus in uno falsus in omnibus - is not a correct principle to follow, - but if falsehood is on a major point in the case and that is deliberate, - or if one of the essential circumstances of the story is clearly unfounded - it is incumbent on the Judge to point out that the witness has made conflicting and irreconcilable statements.
The witness stands discredited by his own conduct. This aspect though touched, was not sufficiently impressed by the Judge on the jury. The learned Judge, moreover, failed to point out that Daimati also told the police that nobody was recognised on the night of the occurrence nor did she state that the deceased had given the names of his assailants - nor that Drunamaya recognised anybody. The story of the assaulted person giving the names of his assailants is equally absurd and it should have been so said - based on the circumstances of the case.
The medical evidence is that the blow on the neck had cut into the curvical vertebra and the spinal cord and even to a layman it should appear that reclining on the bed even, leaning against the wall is an absurdity for a person with such an injury. A reference to the inquest report would have clarified the position better. The expert's opinion does not take away the common man's judgment, - they have the right to think and judge things from day to day experience.
The doctor does not say that the deceased could sit up or rise after the receipt of such a blow, - except that he slightly improved upon his statement given in the previous trial - as to whether the consciousness would be immediately dulled after the blow or there may be a small margin of time left. The medical evidence was not properly put before the jury by the learned Judge, as the doctor said that the injured would not be able to speak distinctly - and the consciousness not only got dulled, but the death soon followed.
There is another fact to which the Judge did not draw the attention of the jury and it was to the fact that the statement, of the witnesses examined by the police were not properly-recorded - they were recorded in what is known as a boiled form and the accused was greatly prejudiced thereby. Apart from the inconsistencies and exaggeration, - there was no uninterested person who supported the prosecution story - and even Dambaru the first comer who was sent to collect the neighbours was not told about the recognition of the accused by Drunamaya or her husband.
The 'kanchi' - Dalbahadur's daughter by the first wife aged ten years who slept in the same room and was present at the time of occurrence was not examined and the natural presumption would be that she would not have supported the prosecution story. All these are material omissions which amount to misdirection and they have in our opinion materially prejudiced the accused in their defence and the conviction and sentence therefore are liable to be set aside.
There is not much of reliable evidence on which the conviction could have been based - and it would be sheer waste of time to order a retrial. We accordingly allow the appeal, set aside the conviction and sentence and direct that the accused persons be set at liberty forthwith.
Ram Labhaya, J.
7. I agree.