John Beaumont, C.J.
1. These are appeals by the eight accused against their conviction by the Sessions Judge of Belgaum of the offence of murder. They were sentenced to transportation for life. There is also a reference by the learned Judge against the verdict of the jury acquitting the accused on the charge of rioting, the learned Judge considering the verdict perverse. It is obvious that there is no substance in the reference, because the charge of rioting and the charge of murder depend on the same evidence, and, therefore, the really serious question is whether the accused were guilty of murder.
2. The jury, as I have said, returned a verdict of not guilty on the charge of rioting, which must mean that they disbelieved the prosecution evidence. Three of the jury happened to be clerks in the District Court or the First Class Subordinate Judge's Court, and as soon as they gave their verdict the learned Judge stated that he considered the verdict perverse, and declined to accept it. Then they were asked to give their opinions as assessors on the more serious charge, and they agreed in holding accused No. 1 guilty under Section 304 of the Indian Penal Code, and the others not guilty, and they stated that they believed Payappa and Basaya but not the other witnesses. It is quite obvious that in point of fact they could not have believed Payappa, because if they had, they would have been bound to convict the accused of rioting, and further there is no justification on the evidence of Payappa for distinguishing between accused No. 1 and the other accused. Moreover, one of the other witnesses, Chandrappa, tells practically the same story as Payappa, and it would be absurd to believe Payappa and disbelieve Chandrappa. I think this opinion of the assessors, that Payappa and Basaya were to be believed, was a sop to the learned Judge, who had commented favourably on their evidence. The real question in the case is whether the evidence of Payappa and Chandrappa is to be believed.
3. The deceased man, Annappa, was a bad character. He was known as the dacoit, and he had recently been prosecuted for two offences, and had been acquitted, and had left the village of Margankop, where he had previously lived, and gone to Shigihalli close by. The suggestion of the prosecution is that the accused, most of whom had given evidence against Annappa in these prosecutions, being tired of Annappa, and despairing of getting him convicted according to law, took the law into their own hands, and beat him to death. There is no doubt that he was beaten to death on October 21, 1940, somewhere about eleven or twelve o'clock in the morning, somewhere' in the neighbourhood of the village of Margankop. The deceased on that day was going to a place beyond Margankop to collect a debt of two Kakeri witnesses, who were with him, and that party of three joined Payappa and Chandrappa, both of whom were friends of Annappa, shortly before they reached the village of Margankop.
4. The evidence of Payappa and Chandrappa and the two Kakeri witnesses is that, about a furlong or a furlong and a half beyond Margankop, they saw people from the village coming towards them. Payappa and Chandrappa say that they saw the eight accused, and the Kakeri witnesses say that they saw about a hundred--that is many people. But, at any rate, they all agree that they saw a party coming out from Margankop, and that Annappa realized that they were coming to beat him, and suggested that they should run, and they started to run. The Kakeri witnesses ran by another way, but the others were rapidly caught up, and Annappa was beaten to death. Now, I see no reason to doubt that this party of five did proceed past Margankop, and that there was an assault upon the deceased; but the eye-witnesses differ on a very material question. Payappa and Chandrappa say that it was the eight accused alone who came out from Margankop, and that they were armed with sticks and axes, and that Annappa said that they had better run, so they all started to run, and the Kakeri people took a different route and escaped altogether. Then Payappa's story is that the pursuers caught up the party of Annappa, that accused Nos. 5 and 7 held Payappa, and that the other accused surrounded Annappa, who stood with an axe raised. Then Payappa says:
Then accused No. 3 stood in front of him and asked him why he had damaged his sugarcane crop and ordered him to throw down his axe. Then Annappa threw down his axe and asked him not to beat him and promised to behave properly in future. He fell at his feet; but accused No. 3 struck him with a stick.
Then we have the class of evidence, usual in this type of cases, attributing to each of the accused specific blows on Annappa. Then Payappa says:
Then the accused put a stick under Annappa's legs, lifted him up, Annappa looked as if he were dead and they carried him off in the direction of the village of Margankop.
Then he says that he and Chandrappa went in the direction of Dastikop, which is a mile or so away from the scene of offence, and from there Payappa sent Chandrappa to Shigihalli to tell Annapa's wife what had happened, and then Payappa himself went to the police station at Kittur, which is about nine miles from Dastikop, and lodged the first information. Chandrappa agrees with that story.
5. The first of the Kakeri witnesses, Bhimapa, (exhibit 16), agrees with Payappa up to the point where they passed Margankop, and then he says: 'I saw a hundred people coming running from Margankop side.' At that point the learned Judge apparently allowed him to be cross-examined, because it was suggested that in the lower Court he had said 'seven people'; but, when the Kanarese word was looked at, it was 'bahala', which, the learned Judge says, means 'many'; so that really there is no conflict between his evidence in the Sessions Court and in the Committing Magistrate's Court. Obviously, when he says 'a hundred people' he means 'many'. Nobody suggests that he counted them. So his story is that many people came out from Margankop. Then he says:
Before Annappa was beaten we two Kakeri men ran away.
6. The other Kakeri witness is Shambu, (exhibit 24), and a very irregular course was adopted with regard to him. He was tendered for cross-examination. The practice of tendering witnesses for cross-examination, which is no doubt often adopted, is inconsistent with Section 138 of the Indian Evidence Act, which says that witnesses shall be first examined-in-chief, and then, if the adverse party so desires, cross-examined, and, if the party calling him so desires, re-examined. It is obvious that if a witness is examined by the defence without having given any evidence-in-chief, he is not being cross-examined, by whatever name the process may be described. The practice of tendering for cross-examination should only be adopted in cases of witnesses of secondary importance. Where the prosecution have already got sufficient evidence on a particular point, and do not want to waste time by examining a witness who was examined in the lower Court, but at the same time do not want to deprive the accused of the right of cross-examining such witness, they tender him for cross-examination. But I think, strictly speaking, the witness ought to be asked by the prosecution, with the consent, of course, of the pleader for the accused, and the leave of the Judge, whether his evidence in the lower Court is true. If he gives a general answer as to the truth of his evidence in the lower Court, he can be cross-examined on that. But he must in some way be examined-in-chief before he can be cross-examined. However, the practice of tendering a witness for cross-examination certainly should not be employed in the case of an important eyewitness. That has recently been laid down by the Madras High Court in Vera Koravan, In re (1929) I.L.R. 53 Mad. 69. Here there were four eye-witnesses, two of whom had told one story, and the third a different story, and it is obvious that the evidence of the fourth eye-witness would be of extreme importance, and ii such witness had not been examined by either of the parties, the learned Judge should himself have called him as a Court witness. However, from the questions asked in what is called cross-examination, it does appear that the witness agreed with his fellow-witness of Kakeri. He says:
Your suggestion that many people came out from the village is correct. They were about 100. Seeing them we were afraid and ran away. I did not see the actual assault on Annappa.
7. Now, it seems to me that the real question is which of those stories is to be believed. If in fact a large crowd came out from Margankop, contrary to the story of Payappa, it is very unlikely that Payappa would see exactly what happened, and who succeeded in striking Annappa; and if in fact it was a large crowd which came out, I think, we must hold that Payappa's evidence against the accused is not acceptable. The learned Judge notices that Payappa is a man of bad character, who had been convicted of dacoity, and also that he was a friend of Annappa, as was Chandrappa. But the learned Judge says that, having said so much against Payappa, he has said all that could be said against him. But I do not take that view. It seems to me that the real difficulty in accepting the story told by Payappa in the witness-box is that on the face of it the story is ridiculous. I accept the story down to the point at which the party was seen coming out from Margankop, and I have no doubt that the assault on the deceased was deliberate. It is clear, I think, that the people of Margankop had got to know that Annappa was going on this expedition, and were minded to waylay him. Even if only these eight accused came out directly after Annappa had passed, it shows that the assault was planned. But if it was planned, why did they let Annappa get a start of a furlong or so from the village? And if Annappa, a man of thirty, well nourished as the medical evidence shows, started to run for his life with a start of a couple of hundred yards, how came it that he was caught within another furlong or so? because the place, which Payappa puts as the place of assault, is not more than a furlong from the place where the party was, when they saw the people coming out from Margankop. The accused vary in age from twenty-two to fifty-five, three of them being over forty, and if they had had to run after a man of thirty, who was running for his life, and to whom they had given a liberal start, I think it very unlikely that they would have caught him. Some of the younger accused might have caught him, but it is inconceivable to my mind that they would have caught him within a couple of hundred yards. He probably would have run a long distance, and his pursuers would have become separated, and Annappa might well have been able to attack them singly. The fact that he was caught and surrounded in such a very1 short time suggests, to my mind, that the villagers had made their plans, and had cut off both his retreat by the way he had come, and his further progress; they had got other villagers in front of him. No doubt the Kakeri witnesses do not say this, but they managed to get away before the assault started, and did not see how Annappa was surrounded and caught.
8. [After commenting on the evidence adduced in the case, His Lordship concluded:] Having regard to the improbabilities, to which I have referred, in Payappa's story, and to the much greater probability in the Kakeri witnesses' story, that this was an attack by a large number of villagers, I am not disposed to accept Payappa's story. Chandrappa stands on the same footing; he was also a friend of Annappa. As to Basaya's evidence that he saw the body being removed by some eight persons, it does not follow that because one hundred or more people took part in the assault, therefore, the body of the person assaulted must have been carried away by all these people. The crowd may have dispersed before the body of Anappa was removed. It is not necessary to reject Basaya's evidence, because one rejects the story of Payappa, and his evidence does not necessarily corroborate Payappa's story, though, no doubt, it is rather more consistent with Payappa's story than with the story of the Kakeri witnesses. But I do not see any sufficient reason for rejecting the story of the Kakeri witnesses that a large crowd assaulted Annappa. All the probabilities point that way. I have no doubt that the villagers surrounded Annappa, and some of them beat him to death, and very probably the accused were in the crowd; but I do not think that in this case we can safely act on the evidence of Payappa and Chandrappa.
9. We must, therefore, allow the appeals, and direct the accused to be discharged.
10. We make no order on the reference.
11. I agree