1. The six appellants were charged for the murder of Singam Munireddy on 4th February, 1960, about 5.30 P. M. and tried by the Additional Sessions Judge, Cuddapah who found them guilty if the charges as framed and sentenced each are used to life imprisonment on the charge of murder and also to three years rigorous imprisonment on the count under Section 148 Indian Penal Code.
2. It may be mentioned at the outset that each of the appellants was convicted twice over for the same murder as the learned Additional. Sessions Judge thought fit that they could be found guilty once under Section 302 read with Section 34, I.P.C., and also under Section 302 read with Section 149 I.P.C. Though the learned. Judge thus sentenced each accused to separate sentences of imprisonment for life he ordered these sentences of imprisonment for life and also that of three years rigorous imprisonment to run concurrently. There fore, whatever might be the result of this appeal it may safely be predicated even at this stage that there could not be two such convictions and sentences imposed on each of the accused for the same murder in the manner as the learned Judge did.
3. The facts are not complicated. But in view of some of the findings of the learned Additional Sessions Judge, it becomes necessary in this case to not only critically examine the findings of fact arrived at by the learned Judge on the state of evidence on record but also deal with some of the legal questions which incidentally arise and could be said to have influenced the judgment of the lower Court.
4. The story of the prosecution is that on the fateful day when the deceased was going at 5.30 P. M. on the railway road leading from Kamalapuram the accused six in number over look him , threw him down and inflicted injuries with daggers and caused instantaneous death to the deceased Muni Reddy. The accused then ran towards the east. The attack is said to have been witnessed by Abdul Sattar (P. W. 1) Abdul Resold (P. W. 2) and another Bheemanna. Soon thereafter P. W. 15, the Village Munsif who received the information about the murder went to the spot and saw the dead body. By then a crowd of persons had gathered at the scene of offence. P. W. 15, the Village Munsif, gathered information from Abdul Sitar (P. W. 1) and got a complaint (Exhibit P-I) written out to the dictation of P. W. 1. While this report was about to be dispatched, the Circle Inspector arrived at the spot, took up the investigation and held the inquest between 7-00 P. M. and 8-30 P. M. It may be mentioned that Sitar (P. W. 1) and another person Narasa Reddy were alone examined at the inquest. Nine injuries were said to have been found on the body of the deceased. However, the doctor (P. W. 12) who conducted the postmortem examination described them as thirteen incised injuries and also opined that as the stab injuries affected the vital organs like the heart and lungs the death could have been instantaneous. The prosecution also alleged that since the Circle Inspector was able to see the accused running away at a distance he directed two of his constables, namely, P. Ws. 4 and 5 and Bheemanna to chase the accused.
According to the prosecution P. Ws. 4 and 5 (police Constables) saw Bheemanna catch the 1st accused who it was said, was stuck up in water in Papering stream. The 1st accused was then brought along with them. This party who were thus bringing the 1st accused were met by a Head Constable and some other constables a mile away from Papering. All of them then proceeded to the police station and reached it at about 8-00 P. M. It is also the case of the prosecution that while the 1st accused was thus caught the other five accused namely, accused 2 to 5 stood on the other bund of Papering and threatened Bheernanna and the two constables (P. Ws. 4 and 5) who chased the accused pointing their daggers at them and that this act o the accused enabled Bheemanna, P. Ws. 4 and 5 to clearly notice who these were and identify them. The Circle Inspector seized the shirt, Turkey towel and dhoti of the 1st accused which were found to be bloodstained at the Kamalapuram police station on the same night. On the next day (5-2-1960) they also found the chapels belonging to the 1st accused which were seized under Exhibit P-7.
Further, a dagger (M. O. 1) was recovered which was found hidden in a heap of sand. The prosecution would however have it that P. W. 1 and P. W. 2 are utter strangers to the accused and it is because of the opportunities that these witnesses had of noticing these appellants that they were fully qualified to identify the accused. P. W. 3 is relied upon as a witness who saw all the six accused running away after the incident. P. Ws. 4 and 5 got the information from P. W. 3 when they chased the accused and learnt the names of the accused from her. Added to this, the prosecution case came out with the story that the motive for the accused consisted in a quarrel between the 2nd accused and the deceased regarding the properties of one Siddamma. The 2nd accused married Sideman's brother's daughter, while Siddamma's mother and Muni Reddy's (deceased's) mother were sisters. This relationship of the 2nd accused and the deceased with Siddamma let to some rivalry in the matter of obtaining some properties of Siddamma. Muni Reddy seemed to have compelled Siddamma to bequeath her properties in his favor while the 2nd accused was trying to avoid such a calamity was thereby he would be deprived of those properties. Eventually, Exhibit ' P. 2 seems to have been executed by Siddamma in favors of neither of these contestants, but only in favors of P. W. 8. But all the same, the version so given by P. W. 2 in regard to motive is sought to be relied upon by the prosecution as providing the spring to the acts of the 2nd accused and his group of men who are the accused in this case.
It is also alleged that Muni Reddy (deceased) came into clash with one Rosi Reddy who was supported by the 2nd accused in causing obstruction to a pathway which the deceased was using. When Rosi Reddy and the deceased came to words, the 2nd accused intervened and supported Rosi Reddy. The further reason as stated by the prosecution is that the accused are closely related and acted as a group. Accused 5 and 6 are brothers, the 3rd accused is their Davadi while, the 4th accuser's brother-in-law married the sister of accused 5 and 6, accused 2 and 3 are close relations as the 3rd accuser's sister-in-law was married to the 2nd accused senior paternal uncles son.
5. It could be seen from the above facts as alleged by the prosecution that Muni Reddy was murdered in day light while P. Ws. 1 and 2 and another Bheemanna were present almost at the scene of offence, that Bheemanna, P. Ws. 4 and 5 soon after chased the six accused as directed by Circle Inspector (P. W. 16), that meanwhile the Village Munsif arrived and took a report from P. W. 1 and that the eyewitnesses (P. Ws. 1 and 2) were in a position to identify all the six accused though they did not know them before. The learned Additional Sessions Judge felt that the evidence of P. Ws. 2 and 3 could be accepted as he was much impressed with their demeanoursand that the evidence of P. W. 1 is further supported by the evidence of P. Ws. 1, 3, 4 and 5. The learned Judge also took the view that P. W. 1 had no grudge against the accused and inasmuch as he has given the report (Exhibit P.1), his evidence is acceptable. He rejected the statement of the 1st accused in which he mentioned that some constables other than P. Ws. 4 and 5 met him on Kamalapur Cuddapah road near Appayapalli only at 10-00 P. M. on that fateful day and brought him to Kamalapuram police station though he knew nothing about the incident. He also did not countenance the defence evidence that the accused were shown to the prosecution witnesses while they were being taken in a bus, or at the sub-jail before the identification parades were held. However, he was of the view that it could not be determined as to who among the accused had dealt the fatal blow. Therefore, he held all the appellants are equally guilty of the offences and convicted them as aforesaid.
6. It is urged on behalf of the accused that the oral evidence of the direct witnesses is not only discrepant but also unbelievable. Mr. C. Krishna Reddy, for the accused contended that P. W. 2, who has been so much relied upon by the cower Court, is an urchin of 12 years and was not examined by the Circle Inspector or at the inquest, and there were also indications from the evidence of the other witnesses that P.W. 2 could not have been a direct witness to the occurrence. We find, on a reading of the evidence of P.W. 15, the Village Munsif, that no person in the crowd except Abdul Sitar (P. W. 1) narrated anything about the occurrence even in spite of the fact that he enquired from the persons gathered at the science of offence whether anybody had witnessed the stabbing. P. W. 15 definitely deposed in his cross examination.
I enquired in that crowd whether anybody has witnessed the stabbing. No person among those 40 or 50 persons came and informed (me) that he had seen the stabbing except Sitar.
In Exhibit P-I which this witness recorded from P. W. 1, the following account of the incident is found.
This day evening at about 51/2 hours (5-30 hours) after taking Tea in the hotel of Mustafa near the Railway Station I was returning to the town. I came near electric pole No. 105/13 near the Railway Booking Clerk house. Then a man lifted up the person who is lying dead here. Five other persons were near the person that lifted, The man that lifted was a stout, fairly tall man. One of them is tall and in fair complexion. The feature of others I could not give. One took out the shoe and hurled at the deceased. The deceased was lifted up and thrown down. The deceased got up and walked two paces and again fell down.
After he fell down the deceased person was stabbed on the left flank (ribs), neck, left shoulder and on the right chest. The person that stabbed was tall, stout and of fair complexion. He was having crop. I can identify if shown. The deceased cried out 'I am dead'. I cried out for persons. The said 6 persons who took part in the murder ran towards east across the fields. In the meantime a crowd had gathered. When I came near the deceased I found him dead. The said offence had taken place this day evening about 51/2. hours. In the meantime the Village Magistrate had also arrived. I gave a complaint to him.
We find that the omission to mention the name of P. W. 2 or even of Bheemanna in Exhibit P-I as very significant as it creates a suspicion in regard to the presence of P. W. 2 at the time of the occurrence. Further, P. W. 1 has no explanation whatsoever why he could not have mentioned the names of P. W. 2 and Bheemanna in Exhibit P-I. We also find that the Circle Inspector examined P. W. 2 only on the evening of 5-2-1960 for the first time. P. W. 2 has also made an admission in his cross-examination that when the Circle Inspector first came to the scene of offence, he had not told the Circle Inspector at that time that he had seen the incident and that he did not also inform the Village Munsif. He would have it that he informed only his father and mother and the inmates of his house, though even in regard to the particular he contradicted himself as could be seen from what he told in the committal Court. P. W. 2 wanted to make it appear that he was not taken along with accused 2 to 6 in the bus in which they were being transferred from Kamalapuram to Cuddapah. But this does not appear to us to be true for his statement could not be taken at its face value.
There is evidence which goes to prove that the Circle Inspector (P. W. 16) and the Sub-Inspector (P. W. 17) transferred the prisoners from the sub-jail at Cuddapah to Kamalapuram sub-jail, though they were aware that such a course need not have been followed especially in regard to under-trial prisoners who are to be identified. The purpose therefore with which the prisoners were being moved cannot but be said in the circumstances as one which created opportunities for the prosecution witnesses to see and note the features of the prisoners and thus later identify the accused as the assailants of Muni Reddy. While such is the case, we find it difficult to give credence to the statement of P. W. 2 that he did not travel along with accused 2 to 6 or had no opportunity to see the accused when they were taken from Cuddapah to Kamalapuram. These features and infirmities in the evidence of P. W. 2, in our view, are indeed of a serious nature, and should have been considered by the learned Sessions judge in their proper perspective. But it looks to us that the learned Additional Sessions Judge seems to have been more obsessed with the so-called impressions he gained about the demean our of this witness and therefore, overlooked these defects which go against the acceptance' of the evidence of P. W. 2. 1984 (2) Cri.L.J. D.F. 6.
It is also found in his evidence that his version of the actual occurrence does not correspond to what has been stated by P. W. 1 in Exhibit P-I. Though we are fully aware that this witness cannot be contradicted by what is contained in the first information report, we cannot but notice that the version in regard to the occurrence is entirely different and apart from the one given at the earliest moment by another, namely, P. W. 1 who even according to the prosecution should be taken to have seen the incident along with P. W. 2 and noticed the same things together. P. W. 2 stated
P. W. 1 was coming from the railway gate side opposite to me. Just in front of me six persons were going and one person was going ahead of them towards the railway gate. The man who was going in front of all was murdered. Bheemudu was coming behind me in a single bullock cart. One of the six persons lifted the deceased while the other five stabbed the deceased with daggers. A-1 was the person who lifted the deceased. The other five A-2 to A-6 are the persons who stabbed with daggers. A-1 left the deceased and A-1 stabbed him with dagger. Deceased got up and walked two paces and then fell down with his face upwards. Then A-5 again stabbed the deceased with dagger. Then all the accused ran away towards the east i.e., towards the Papering river side. I went near the dead body.
In his cross-examination, he admitted that the assailants surrounded the deceased in a circle, and that he was not acquainted with the six persona previously. Though he was prepared to give the details of the attack, the fact that he saw the deceased surrounded by all the accused make us difficult to believe that he could have noticed the individual acts of each of the accused while each accused was assaulting the deceased. He also admitted that he did not shout at the time of the assault. Considering his age, we cannot but remark that this is a secularity which renders his continued presence unbelievable. Yet another factor which goes against him is that in Exhibit D-II he deposed in the committal Court that the 1st accused was present when he was examined by the Circle Inspector. He later denied the same in the Sessions Court. We, therefore, feel on a careful scrutiny of the evidence of P. W. 2, that this lad of 12 years is the least reliable of the witnesses for the prosecution, in spite of all that has been said by the lower Court in favour of this witness.
(7) Now taking the evidence of Atcham a, (P. W. 3) about whose demean our the lower Court had also made a favorable observation, we feel unconvinced in the circumstances that her evidence could be acceptable. It is in her evidence that on the fateful day, she came to Basireddypalli where her mother resides and went out grazing cattle in the fields. She then saw at about 2 of 3 bars before sunset all the six accused running about 20 or 22 yards away from her. She described that all the accused had white, dress and she could also observe some red stains on their clothes. She would have it that she questioned the 2nd accused, but got no reply. After sometime she noticed P. Ws. 4 and 5 (constables) and Bheemanna come running from west to east and learnt from them that since a murder had taken place, they were chasing the assailants. On a careful leading of her deposition, we find that apart from learning from the constables that there was a murder, she does not seem to have spoken a word to them. She further stated that when she turned back, she saw a crowd at the spot and therefore she went to the scene of offence. There she saw Muni Reddy who had been murdered and was content thereafter to go away to the cattle. She admitted that she did not tell anybody assembled at the spot anything about the assailants.
This girl of 18 years had not even the necessity to identify the constables who met her, though the Circle Inspector examined her for the first time on the evening of 5th February, 1960. According to her, she told her mother and her neighbors only, but none of them have been examined and thus she has not been corroborated even in this respect. She makes it appear that when she came to the scene of offence, the sun was two cubits high in the west, which far advances the time of occurrence. While assessing the value to be attached to the evidence of this witness, we are indeed confronted with some insurmountable difficulties. If, as stated by her, she knew each other accused by name and was in a position to give out the names of the accused, nothing prevented her from mentioning that when she came and saw the dying Muni Reddy. In her cross-examination, it is found that she took umbrage by pointing out that the Circle Inspector did not ask her to identify the constables who questioned her. It is also brought out that the husband of this witness had been a partisan of the deceased, and that her husband was so much attached to the deceased that he was almost a shadow of his. We find indeed her husband described as the 'body guard' of the deceased. From this, it is obvious that there is reason for P. W. 3 to be interested in the prosecution. These circumstances and also the reasons which we will be detailing while discussing the evidence of P. Ws. 4 and 5, make it difficult to accept the testimony of this witness. The ground that the learned Additional Sessions Judge has made favorable observations in regard to her demean our cannot, in the circumstances, enhance the value to be attached to her testimony. On the other hand, her interestedness in the prosecution is thus brought out.
8. Of the direct witnesses, there remains the evidence of P. W. 1. His earliest version, as could be seen from Exhibit P-I is a altogether different from what he deposed in the Court. In Exhibit P-I the narration commences with the lifting up of Muni Reddy who was lying by another stout and fairly tall man. There is mention also about the hurling of a shoe at the deceased. After the deceased was thrown out, the account in Exhibit P-I narrates, the deceased walked up two paces and again fell down, and that after the deceased fell down, he was stabbed on the left flank, left shoulder and right chest by one person who was described again as tall, stout and of fair complexion with a cropped head. There is thus no mention of the stabs given by each or any of the other accused, much less, at the place at which the accused struck. Now, in his deposition before the Sessions Court, he varied that version and falls in line with P. W. 2. The elaborate manes in which the occurrence is thus described cannot but be described, in the circumstances, as a mere development. This witness has further stated that he showed the six persons who were running away to the Circle Inspector. Here it is necessary to consider the time factor to find out whether such a thing could be true.
No doubt, the police station is only two for longs away from the scene of occurrence. But then, according to the evidence of the Village Munsif, the Circle Inspector arrived only after the report (Exhibit P-I) was written and was about to be dispatched. So some time has elapsed between the running of the accused and the arrival of the Circle Inspector, and during that time it does not seem to be unreasonable to suppose that the accused must have run to a great distance. It thus becomes difficult, in these circumstances, to believe that the accused would have been visible even from that distance to the Circle Inspector so that P. W. 1 could show those accused while running away from the spot. In this connection, the evidence of P. W. 16, the Circle Inspector, has not a little bearing. P. W. 16 deposed that the information he got about the accused was not from P. W. 1 alone but that they (the crowd) informed him that some persons stabbed the deceased and were running towards Papagni river. This militates against the version of P. W. 1. He mentioned that when he saw the accused, they were getting into the bed of the river, Papagni. The evidence in regard to the distance between the bed of the river and the place of occurrence makes it clear that it cannot be less than a mile. When such is the case, it becomes doubtful whether the Circle Inspector could have seen the accused as stated by him. It is impossible also to believe that the track taken by the accused is in a straight line at any rate, there is no positive evidence to establish that it is so.
Having regard to this state of evidence, we have to consider further whether the alleged chase of the accused by P. Ws. 4 and 5 and Bheemanna in the manner spoken to by the prosecution witnesses could be believed. P. W. 16, the Circle Inspector, has stated that having dispatched Bheemanna and Paws. 4 and 5, he immediately went over to the railway gate and picking up a jeep went to the police station, and taking the Sub Inspector of Yerraguntla and constables went up to Yeti vanka beyond Thiopental, but as the jeep could not cross the vanka, he came back. He however, would have it that from the vanka he could not see strangers running away. It is in his deposition that the Its accused was arrested at about 9-15 P. M. But it is not explained why such a long time was taken to apprehend the Its accused. If, as is spoken to by this witness, the chase was immediately after the occurrence and the Its accused was found in the middle of Papagn which was about a mile and odd and was brought from there to the police station, it should be point ed out there is no sufficient explanation offered for the delay caused in bringing the Its accuses to the police station at that late hour. It is not also explained why the Circle Inspector should have hastened the holding of the inquest even between 7-00 and 8-30 P. M. if he was expecting his constables and Bheemanna to chase the accused and catch them. The only basis upon which the holding of the inquest at that early hour, without awaiting the return of the constables who chased the accused, could have been justified is because the search of the accused by anybody was made only alter the inquest and not before.
Having regard to this and also the manner in which it was sought to be made out that the chase became necessary because the Circle Inspector saw the accused running away, we are unable to place any credence with regard to that part of the evidence for the prosecution concerning the chase of the accused. Now in this context, the answer of the Its accused as contained in reply to question No. 7 in the Sessions Court becomes pertinent. As already pointed out, he denied having been caught in the river Papagni, but asserted that some other constable met him on Kamalapuram-Cuddapah road at about 10-00 P. M. and brought him to Kamalapuram police station. Therefore, when the evidence in regard to the chase is discrepant and the apprehension of the Its accused in Papagni cannot be believed, this statement of the Its accused assumes importance. Therefore, inasmuch as the fact that the accused was caught and brought alone could be said to have been established by the prosecution, but not the circumstances in which the Its accused was apprehended as all edged by the prosecution; P. Ws. 4 and 5 could not have seen and been able to identify the accused. We would also further add, that having regard to the dictum laid down in Suddeb Jha v. State of Bihar : 1957CriLJ583 , that the burden of proof is never shifted to the accused and if a reasonable explanation is given by the accused, it would be up to Courts to acquit the accused, we find there is force in the contention of the learned Counsel for the accused that the mere fact 'that the Is accused was somehow apprehended and brought cannot by itself be taken as a circumstance going against the accused.
It is also to be found in Raja Khima v. State of Saurashtra : 1956CriLJ426 that where ever it may be possible to take two views of the statement of the accused, the accused is entitled to the benefit of every reasonable doubt. Further, it is therein laid down that when an accused person offers a reasonable explanation of his conduct, then, even though the accused cannot prove his assertions, it should ordinarily be accepted unless the circumstances indicate that it is false. Also, there could be no further question of receiving the statement of the accused in evidence as any other piece of evidence has and also considered at the trial (sic) has been held in Hate Singh v. State of M.B. : AIR1953SC468 In view of the importance thus to be attached also to the statements of the accused, we would consider that since it was possible for the prosecution to get at the Fist accused and bring him over to the police station on the fateful day would not by itself be a circumstance which could be taken to probably the chase of the accused by Bheemanna and P. Ws. 4 and 5. The version in regard to chasing the accused is also in our view inconsistent with what has been asserted by the accused and unless and until the statement of the accused has been rendered false by positive evidence on the side of the prosecution, the benefit of doubt arising there from must necessarily go to the accused.
9. In this view of the evidence of P. Ws. 1 to 3 and especially as this is a case where the prosecution relies upon direct evidence it may not be necessary, when the direct testimony is unconvincing, to have to deal with all other circumstances which the prosecution relies upon. No doubt, P. Ws. 8 and 9 speak of the motive which has been referred to above. All we need to observe is that even if the motive, as alleged by these witnesses, could be taken to have been established, it cannot be said that it is so strong as to impel all the appellants to join together to murder the deceased Muni Reddy. The evidence of P. W. 6 is relied upon by the prosecution for the purpose of showing that on 4-2-1960 at about 4-40 P. M., he saw accused 1, 2 and 5 in white clothes enquiring about the whereabouts of the deceased Muni Reddy at the B.D.O's office at Kamalapuram. P. W. 6 is a peon of that office and it is not known why he was particular to observe these three persons alone and on the mission on which they were. Even if this is believed, we are unable to see how this salutary circumstance will establish the choice of that particular day by these accused for the murder of Muni Reddy.
10. It is necessary also to refer to the recovery of the boots worn by the Fist accused and the towel which is said to have belonged to that accused. The case of the prosecution has been that the dagger was found in a heap of sand as also the boots, and they were recovered under Exhibit P-7 at about 9-30 A. M. on 5-2-1960 on the bund of Papagni river. It is stated that some information was received in regard to the place where the dagger and the towel which the Fist accused had were buried. But, it is however, certain that this information was not given by the Its accused and the recovery was not at his instance. Such being the case, it becomes necessary to see whether the prosecution succeeded in tracing these articles, namely M.O.s I and III, to the Its accused. We do not find that kind of evidence on record to connect the Its accused with these articles. No doubt, an effort has been made to show that the Its accused had a towel on by relying upon the testimony of P. W. 6 and P. W. 13. But there is nothing to show that P. Ws. 1 and 2 or even P. W. 6 saw the Its accused with his towel at the time of the occurrence or when the accused were going towards east after the occurrence. In such circumstances, in our view, it is not possible to find that the Its accused had the towel on and by reason of that towel, it was possible in this case to conclude the presence of the Its accused at the place of occurrence.
11. It next remains to examine the evidence in regard to the identification of the accused by P. Ws. 1 and 2. As already pointed out by us, P. Ws. 1 and 2 are strangers to the accused and they do not impress as truthful witnesses. Even otherwise they have observed the accused if at all only for a few moments while stabbing the deceased. It is also in evidence that all the six accused surrounded the deceased and the lowest Court had come to the conclusion that, in those circumstances, it is not possible to find which accused caused which injury and in what manner. Such being the case and having regard to the powers of observation of P.W. 2 who is only a boy of 12 years, we have to find out whether the description of the six accused has been, given by these two witnesses. P. W. 1 at best could be said to have described only two persons in Exhibit P-I. But on reading the description so given in that report, we find that points in regard to the distinction or identification have not been brought out clearly. On the other hand, both the persons mentioned in Exhibit P-I have been described more or less similarly. There is nothing to show that P. W. 2 ever described the feature of the persons he saw.
On behalf of the defence, complaints made by the accused that they were sent by these witnesses when they were taken in a bus from Cuddapah to Kamalapuram has been put in evidence. The Circle Inspector and the Sub Inspector, as already observed, admitted that they took the extraordinary step of moving the prisoners from one sub-jail to another though they were aware they ought not to do so. While the fact that the accused were moving from one place to another openly and in such a manner that others including the prosecution witnesses could have observed has come out clearly in the evidence, the assertion made by Paws. 1 add 2 that they did not see the accused then remains to be carefully considered. No doubt, D. Ws. 1 and 2 have been examined to prove that P. W. 2 was also seen in the same bus and observed these accused. That apart, the unnecessary step taken by the investigating officer in moving the accused has created in this case any amount of suspicion that they were creating opportunities for the prosecution witnesses to observe the accused even before the accused were identified. There is also evidence to show that while these accused were moving about from the sub-jail to the kitchen or for their daily needs, they could be seen and observed. P. W. 1. in his cross-examination was confronted with Exhibit D-8 wherein he had stated that he had seen the Its accused near the police station for 10 minutes even on the day the Its accused was apprehended. P. W. 2 has prevaricated as made out by Exhibit D-11 in regard to this particular. We cannot, therefore, set any store on the nature of the identification by P. Ws. 1 and 2 of the accused, when especially they really had the opportunity to see the accused before the proceedings for identification were held. Such being the case the identification of accused by P. Ws. 1 and 2 cannot be said to have been made out unaided and beyond doubt as the assailants of Muni Reddy, the deceased.
12. The defence counsel argued that inasmuch as Bheemanna has not been examined in the Sessions Court, there has been in this case an willful comission to examine a material witness and any benefit of doubt arising there from must be given to the accused. It is gathered on a perusal of the record that this Bheemanna was available to the prosecution and was examined in the committal Court. It is found from the judgment of the lower Court that since the prosecution has 'examined P. Ws. 1 and 2 as eye-witnesses, the non-production of Bheemanna will not dwindle the importance of the evidence of these witnesses and this omission is not fatal to the case as set up by the prosecution. But we are unable to uphold this view of the learned Sessions Judge. The question which thus arises is not always to be judged by the number of witnesses who has been examined for the prosecution, but should be considered from the point whether a witness who has been omitted to be examined is a material witness and further the chance of any Court disbelieving such a witness for any reason is calculated to go against the version of the prosecution. In other words, if a direct witness is available and is in a position also to substantiate more material facts than the other prosecution witnesses examined by the prosecution and also happens to be an independent witness, the giving up of such a witness would indeed create a suspicion; for instance, as in the instant case if the evidence in regard to chase and the apprehension of the Its accused in the manner as alleged by the prosecution is within the knowledge of Bheemanna and it is also important that his testimony should be had for the purpose of corroborating P. Ws. 4 and 5 the giving up of Bheemanna, in the circumstances would tantamount to no examination of a material witness.
It could, therefore, be seen that this Bheemanna is thus an important witness to unfold the narration in regard to that case of the prosecution relating to chase. He is also yet another witness who ought to be relied upon by the prosecution to corroborate P. Ws. 1 and 2 and produced by the prosecution. But there is also the probability in this case that Bheemanna may not be believed since his name has not been mentioned in Ex. P-I and that would bear upon the veracity of the testimony of P. Ws. 1 and 2 And therefore, when as in this case so much of a purpose has to be served by a particular witness who has been examined in the committal Court but given up in the Sessions Court, the view that has to be taken of such a situation is not in our view, to rest or made to be dependent upon the mere statement of the Public Prosecutor that it is unnecessary to exam mine Bheemanna as he is a partisan of the accused. We cannot but refer in this connection to the weighty observation made by a Bench of this Court consisting of Chandra Reddy, J. (as he then was) and Satyanarayana Raju. J. in Re Vengala Reddy, AIR 1956 Andhra 26 as regards what representation could be made by any Public Prosecutor in support of this attitude in giving up a witness. No doubt these observations pertained to a case where a Public Prosecutor told the Court that he had information that a particular witness had turned hostile though not supported by other record. But we would consider that those observations equally apply to a case where a Public Prosecutor chooses to tell the Court that a material witness is a partisan of the accused without the material to support that allegation. The stage at which any observation of that kind regarding a witness could be made by a Public Prosecutor is pointed out in that decision as only when such answers are given by the witness or when the demeanor of a witness is such that such an inference becomes possible. It would therefore, mean that it is improper for a Public Prosecutor without basing his own impressions on such material to I make representations of the kind that a witness I is hostile or is a partisan of the accused to make a representation offhand.
13. We also think that the practice of relying upon mere impressionable statements and justifying the non-examination of a material witness by Courts ought to be deprecated. In this connection we have the emphatic opinion of a Full Bench of the Madras High Court in Public Prosecutor v. Subramanian Odayar 1937 Mad WN 557 at p. 562 which in our view needs to be extracted.
The practice of some Public Prosecutors in the mofussil of telling the Sessions Judge that they are informed that the witness has turned hostile has on previous occasions been strongly condemned.
All that he is entitled to do is to submit that his answers and his demean our show that he has turned hostile.
This means that Public Prosecutors are not entitled to give out their opinion without demonstrably substantiating the same. In this context, a reference to the decisions which bring out the importance to be attached to the testimony of a material witness whose evidence should not be omitted to be adduced. No doubt, in Stephen Seneviratne v. The King AIR 1936 PC 289, a caution has been administered that the examination of many witnesses is likely to lead to confusion. But that would be so in a case where witnesses are merely multiplied and nothing else is otherwise achieved. In Malak Khan v. Emperor AIR 1946 PC 16, the observation of the Judicial Committee could be said to be of the same tenor. Their Lordships have remarked that there is no obligation compelling the counsel for the prosecution to examine all the witnesses who speak to the facts which the crown desired to prove. But in the case reported in Adel Muhammed El Dabbah v. A. G. of Palestine AIR 1945 PC 42 at p. 45 we find the following passage:
While their Lordships agree' that there was no obligation on the prosecution to tender these witnesses and therefore this contention of the present appellant fails their Lordships doubt whether the rule of practice as expressed by the Court of Criminal Appeal sufficiently recognizes that the prosecution has a discretion as to what witnesses should be called for the prosecution and the Court will not interfere with the exercise of that discretion, unless perhaps it can be shown that the prosecutor has been influenced by some oblique motive.
This matter bad also come up before the Madras High Court In re. Ramachandran, AIR 1957 Mad 505 at p. 507. There the Division Bench was considering the omission to examine the eyewitnesses who were called upon by the prosecution in the committal Court and who were not treated as hostile. Adverting to the omission to examine those witnesses in the Sessions Court, there occurs the following observations:
In those circumstances in our opinion the three witnesses examined in the committal Court should have been examined in the Sessions Court as well. There is no satisfactory explanation for not examine those witnesses in the Sessions Court.
In our opinion the omission to examine those witnesses is a serious defect in the conduct of the prosecution.
In Habeeb Mohammad v. State of Hyderabad : 1SCR475 comment has been made in regard to the non-examination of an official who was a top-ranking police officer said to have been present at the scene of offence. The following remarks of the Supreme Court need be noticed:
The witness was at the time of the trial in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution casa from his non-production as a witness in view of illustration (g) to Section 114 of the Indian Evidence Act, but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial.
The Supreme Court has thus viewed the omission to examine the material witnesses rather seriously and as fatal to the prosecution. Having regard to the dicta of these decisions, it becomes impossible to uphold the conduct of the prosecution in withholding a witness when, as in this case, apprehensions as to oblique motive also arise. The fact whether the Circle Inspector saw when the accused were running away and did order a chase to be made is a matter very important for the prosecution, and such a matter could be said to be properly elicited or made out in a case like this only by the examination of Bheemanna. But Bheemanna is kept out of the box. We, therefore, find that the non-examination of Bheemanna has created a lacuna which entitles the Court to draw an inference adverse to the prosecution.
14. For the aforesaid reasons, we find that the appeal should succeed. The appeal is accordingly allowed. The convictions and sentences imposed on the appellants on all the charges are set aside. They are acquitted and are directed to be released forthwith.