1. The facts briefly stated against the accused are that on the morning of 3.8.1950 Harna Bai, the mother of the accused went to the house of the deceased and demanded payment of money due to her. It is said that the house of Harna Bai was very near to the house of the deceased and that Harna Bai had advanced an amount of Rs. 150/- to the deceased out of which some money was due. This occurrence is said to have taken place in Deshrnulm Galli. It is said that the deceased Ibrahim denied that any balance was due but Harna Bai insisted that some balance was due and that it should be paid forthwith otherwise she would take away household utensils of the deceased. On this, the deceased it is said asked Harna Bai to hold the tail of the cow and say that money was still due. At this, it is said that the accused Rama who is the son of Harna Bai and who was nearby caught hold of a cow that was passing by and brought it near Harna Bai and Harna Bai caught hold of the tail of the cow and swore that money was due to her from the deceased. After this, it is said that some money was paid but in the meanwhile a quarrel ensued and there was a free fight between Rama and the deceased Ibrahim, and ultimately Rama delivered a kick on the back of the deceased as a result of which the deceased died. The medical report says that death was due to aspheyxia & thereafter heart failure. 11 witnesses were examined on behalf of the prosecution while 3 witnesses were produced on behalf of the accused. P. W. 11 is doctor Subba Rao. He states that death was due to stopping of breath, but there were no marks of strangulation on the neck of the deceased. Besides the punchas and tile Sub-Inspector of Police, who is the Investigating Officer, 3 persons have been produced as eye-witnesses. P. W. 2 is Baban Sab. Proceedings before the Police commenced when this Baban Sab went and informed the Police. His statement recorded by the Police is to the effect that about as. 150/-were due to the washer-woman Harna Bai out of which Rs. 17/- were still to be paid, and they were also later paid, but on the morning of the occurrence Harna Bai came to the house and demanded Rs. 9/- more. This Broan Sab is the father of the deceased. He says that his son Ibrahim told Harna Bai that if she would hold the tail of the cow and swear that Rs. 9/- were due he would pay the amount. At this Rama, who was nearby, caught hold of a cow and brought the animal near Harna Bai who did as was desired and then Rs. 9/- were paid to Harna Bai. He says that while this was going on an altercation took place between Rama and the deceased and Rama began to abuse and attack the deceased. In his statement before the lower Court, this witness admits his eye sight as defective and that he cannot see things properly beyond a distance of 7, 8 paces. This he has stated also before the Committing Magistrate. Before the Sessions Judge in cross-examination he has admitted that while he was sitting on the platform outside his house this. occurrence took place at a distance of 25 paces in the lane nearby. He admits that his statement given before the Committing Magistrate that the fight took place at about 50 paces from the door of his house & that he could see nothing is correct. Thus, so far as this witness is concerned his evidence is of no use for deciding the fact whether it was the deceased who took the Initiative in starting the quarrel as is alleged by the learned Advocate for the accused or it was the accused who took the initiative. Thus, the question of private defence has arisen and has got to be decided in this case. The other two eye witnesses are Chota Bi P. W. 4 and Bapu P. W. 6. The statements of these two witnesses are diametrically opposed to each other. P. W. 4 Chote Bi states that she saw the occurrence from her house which is near the house of the deceased. After narrating the fact that Harna Bai caught hold of the tail of the cow she says that the deceased asked somebody to bring Rs.7/- from the house. But the father Of the deceased Baban Sab states that Rs. 9/- were sent for from the house and that Hafiza Bi brought that money. This is an important discrepancy and we have got to decide whether the witness saw the facts closely or not. She states that while the money was being paid, Rama attacked the deceased saying that his mother was insulted and was made to swear in the way she was made to do and that after this, both Rama and the deceased quarreled and came to grips. In cross-examination she admits that the fight took place in an open place, that there were many people at the time of the altercation viz., Bapu, Hayat, Shaik Hussaln, RamakriKhna Rao and Bandu etc. As against this, P. W. 6 Bapu states that when the deceased asked Harm Bai to catch hold of the tail of the cow to swear that money was due to her, she did it and demanded the money, at which the deceased said that he would not pay the money and said that he had come across several such dishonest people who do not hesitate to stoop to do such religious acts for the purpose of dishonesty. After saying this, the deceased began to attack Harna Bai and Harna Bai pushed the deceased back who fell on the stones nearby and died. This is all the evidence in the case with regard to the occurrence.
2. The learned Sessions Judge has held that the statement of P. W. 6 should not be relied upon as he has given a statement contrary to what was recorded by the Police and that it should be regarded as collusive. After going through the case diary submitted by the Public Prosecutor Mr. Trimbak Rao, I do not find anything to warrant the statement of the learned Sessions Judge. On the contrary, I find from the case diary that with regard to tills witness Bapu it has been written therein that he is a friend of the accused and that he is giving a statement similar to the statement of Pandit Gowli. Thus, it is clear, that there is no reason to disbelieve this witness. The statement of Chote Bi P. W. 4 is not free from doubt inasmuch as she has erred in giving some important details. It is under such circumstances that the prosecution should produce independent witnesses. It has been proved that there were many people standing while this fight between the accused and the deceased was going on. None of such independent witnesses was produced. No doubt the discretion to produce such independent witnesses lies to a certain extent with the prosecuting Counsel but the court has to take notice of the existence of such independent witnesses to arrive at a conclusion for the non-production if the witnesses on the record are in the opinion of the Court insufficient to establish the guilt against the accused. The question in this case that arises is whether it was the deceased who took the initiative and started the quarrel or the accused, or according to the story of the defence the accused was not present and it was Harna Bai who pushed the deceased back as a result of which he fell and died. The net result comes to this that unless it is proved beyond the possibility of a reasonable doubt that the accused took the initiative, benefit of doubt should be given to the accused. It has been held in - Woolmington v. The Director of Public Prosecutions (1935) A.C. 462 (A), that in such cases when the evidence is of such a nature that conclusion cannot be arrived at as to who started the fight or how the quarrel started, the benefit of doubt should be given to the accused. Agreeing with the principle enunciated in the case cited above, I give the benefit of doubt to the accused and acquit him. The judgment of the Sessions Judge is set aside and the accused acquitted.