1. The appellant Nandgopal has been convicted of an offence under Section 302, Penal Code, read with Section 34 thereof for the murder of one Dalsingh of Mouza Dhana on 2342-1949 and sentenced to death,
2. According to the prosecution, the appellant along with his brother Rajaram (who is absconding) and one Rambisal attacked with lathis Dalsingh when he had gone to answer the call of nature on the morning of 23-12-1949 and inflicted numerous injuries on his person. Dalsingh succumbed to these injuries within a few hours of the assault. The motive for the crime is said to be enmity between the family of the appellant and that of the deceased which had already taken in the past the toll of the life of Dulichand, the father of the appellant. This was about 16 to 18 years ago and the person responsible for Dulichand's death was Pooran, the brother of the deceased.
3. As Rajaram is absconding, the appellant and Rambisal were the only persons who were tried together. We may mention at the outset that originally two more persona, Ramgopal, another son of Dulichand, and one Kalkaprasad were charged with the offence before the Court of the Committing Magistrate. The Committing Magistrate, however, discharged them on the ground that there was no evidence against them and framed charges only against the appellant and Rambisal. The Sessions Court acquitted Rambisal and convicted the appellant alone.
4. The prosecution sought to prove their ca?e primarily from the evidence of three eye-witnesses, namely, Sm Sukhrani, (P. W. 4) the widow of Dalsingh, Jagannath (P.W. 5) and Rikhiram (P. W. 8). They also rely on the evidence of Mulu (P. W. 6) as affording indirect corroboration to the evidence of Rikhiram (p. w. 8). The prosecution also sought to prove a dying declaration made by Dalsingh incriminating the appellant, Rambisal and Rajaram.
5. The learned Additional Sessions Judge, who tried the case, refused to rely on the evidence of Sm. Sukhrani (P. W. 4) and Jaginnath (P. W. 5) and also disbelieved the evidence relating to the dying declaration for reasons with which we are in agreement but relied on the evidence of Rikhiram (p. w. 8) and Mulu (p. w. 6). The learned Government Pleader has not pressed for consideration the evidence of Sm. Sukhrani and Jagannath or the evidence regarding the dying declaration led on behalf of the prosecution but has instead sought support from some evidence led by Rambisal in his defence on which the learned Additional Sessions Judge has also relied. Besides this material, there is nothing on which reliance is placed on behalf of the prosecution.
6. Before dealing with the evidence of Rikhiram (P. W. 8) and Mulu (P- W. 8), we think it desirable to consider the defence evidence which found favour with the learned Additional Sessions Judge. That evidence consists of a document (ex. D 3) and the testimony of Narbadaprasad (D. W. 2). The document was produced and Narbadaprasad was examined on behalf of the accused Rambisal. It was sought to be proved from this evidence that the assault was committed only by a Gurelya (the appellant is a Gurelya but Rambisal is not) and that the deceased was saved by Rikhiram (P. W. 8). Reliance is placed upon this evidence by the learned Government Pleader to show that Rikhiram's presence at the incident is conclusively established thereby. The question is whether we should use this evidence against the appellant.
7. On the question whether the evidence adduced in his defence by one accused can be used against another accused, Courts in India have taken somewhat divergent views. In Bahoru v. Emperor : AIR1925All769 it has been held that the evidence led in his defence by one accused cannot be treated as prosecution evidence against another accused. No reasons are, however, given by the learned Judge for taking this particular view. A similar view has been taken by the Lahore High Court in Chatur Bhuj v. Emperor 12 Lah, 885 : A.I.R 1981 Lab. 57 : 32 Cri.L.J. 672 and in Amarnath v. The Crown 42 P. L.B 378. In the last mentioned case, it was observed that if the particular witnesses had been genuine witnesses, they would have been examined on behalf of the prosecution.
8. In Chaman Lal v. Emperor A.I.R 1840 Lah. 210 : 41 Cri. L.J. 639 Young C.J., has held that the testimony of witnesses examined in defence on behalf of one accused and cross examined on behalf of another accused is admissible as against the latter. In support of this view, reliance was placed on Bam Chand V. Hanif Sheikh 21 Cal. 401. No reference was, however, made to the previous two decisions of the same Court. In Aung Than v. The King A.I.R 1937 Rang. 540 : 39 Cri. LJ. 255 a view similar to that taken by Young C.J., was adopted and the decision in Chatur Bhuj v. The Crown 12 Lah. 385 : A.I.R 1931 Lab. 57 : 32 Cr. L.J. 672 was distinguished. In Shapurji Sorabji v. Emperor A. I. R 1936 Bom. 154 : 37 Cri. L.J. 688 the view taken was that the statements of witnesses produced by one accused though not inadmissible against a co-accused must be received with caution and regarded with suspicion.
9. It seems to us that merely because certain evidence has been adduced in a case not by the prosecution but by one accused, it is not rendered inadmissible against another accused. It may be otherwise where that other accused had no-opportunity of cross examining the particular witnesses who have deposed against him or where he has not been given an opportunity by the Magistrate or the Judge to explain the circumstances appearing in such evidence. Even though that be so, we agree with the learned Judges of the Bombay High Court that when evidence which was available to the prosecution but not produced by them is instead produced by some other accused person, there is no guarantee about its truth and, therefore, it must be received with caution and regarded with suspicion. In the present case, we may point out that Rikhiram (p. W. 8) has completely absolved Rambisal and so the main object with which the evidence of Narbadaprasad (d. w, 2) was adduced and the document, Ex. d-3, put in by Rambisal appears to be to establish the presence of Rikhiram on the scene of occurrence and thus ensure his acquittal by throwing the blame on the appellant and Rajaram, We may mention that all this evidence was available to the police and since they did not think it proper to avail themselves of that evidence, it would be fair to conclude that they did not regard it as genuine. If they discarded that evidence as not genuine at one stage, it would certainly not be open to them to place reliance on it later finding that Rambisal has already been acquitted. In the circumstances, therefore, we think it extremely unsafe to rely upon the evidence of Narbadaprasad (D. W. 2) and to regard Ex. D 3 as a genuine document.
10-11. That leaves now the evidence of Rikhiram (P. w. 8) and Mulu (p, w. 6). [Their Lordships then discussed the evidence of these witnesses and proceeded thus :] Even this statement of the witness is not by itself sufficient to incriminate the appellant. Thus, though we do not disbelieve the evidence of Mulu, it does not follow therefrom that everything that Rikhiram has deposed to is true.
12. We may also mention that as against this very unsatisfactory evidence, there is the evidence of six defence witnesses, supported by certain documents, which clearly establishes the ' alibi of the appellant, According to the appellant, he left Dhana on 22nd December, went to a village called Parasia where he purchased a cow after borrowing Ha. GO from one Surajprasad (D.W. 4) and left for Dhana on the 24th. The Musafari Register (Ex. D-6) clearly shows that the appellant was at Parasia from 22nd to 24th December, It is clear from Ex, D-5, which is a stamp paper purchased by the appellant for executing a bond, that this stamp paper was purchased on 93rd December. Shriram Pande (d. w. 6) has deposed that the appellant purchased it at 8O'clock from him on 23rd December at a village called Jaitpur which is close to Parasia. We see really no sound adequate reasons for disbelieving this evidence and accepting instead the extremely doubtful testimony of Rikhiram (P. W. 8).
13. Having given our most anxious consideration to the evidence adduced in this case, we think that the guilt of the appellant is not proved beyond reasonable doubt. Therefore, disagreeing with the learned Additional Sessions Judge, we set aside the conviction of the appellant under Section 302, Penal Code, and the sentence of death passed on him and direct that he be set at liberty.