1. This is an appeal by Ashiq Ali, Sadiq Ali and Munshi from their conviction and sentences of transportation for life under Section 302, I.P.C., passed by the learned Sessions Judge of Meerut. The appellants and Imdad Ali were prosecuted for the murder of Umrao on 10th May 1935 at 6 p. m. in village Dibarsi, district Meerut. Ashiq Ali and Sadiq Ali are the sons of Imdad. Munshi is a cousin of Imdad. The accused and the deceased all belong to village Dibarsi. The story for the prosecution, briefly stated, is that Umrao and his son Barkat returned with the marriage party of the latter to their village on 10th May 1935, and that at about 6 p. m. when Umrao came out of his house into a lane, he was assaulted by all the four accused named above. The injuries received by Umrao resulted in his death on 27th May 1935. The occurrence is deposed to by Tulwa, Munshi and Imam Khan, who profess to be eye-witnesses. The important question in the case is whether the evidence given by these witnesses can be implicitly relied upon in proof of the guilt of the appellants. We shall consider this question in detail subsequently. No report of the occurrence was made by Umrao or any of his relatives till 12th May 1935. The report was made by Umrao himself at 8 a. m. The motive for the assault, described by him, was that Umrao had given evidence against the four accused in two cases. The suggestion was that, through enmity, Imdad and others assaulted Umrao, as alleged by him. The report purports to be one in respect of an offence under Section 323, I.P.C., and is very meagre. No particulars of the cases in which Umrao alleged to have given evidence against the accused were furnished. 'When he (Umrao) gave evidence is also not mentioned. Umrao was sent for medical examination the same day, and was found to have received five injuries, one of which (fracture of the frontal bone) was described to be grievous and dangerous. The remaining four were found to be simple. Umrao's condition was considered to be serious and his dying declaration was recorded by a Magistrate on 18th May 1935. Umrao stated that he was coming from Nehal and was going to Mubarakpur, and that when he crossed the 'bamba' (canal distributary) he was assaulted by Imdad. He proceeded to say that there was enmity between him and Imdad for a year or six months.
2. The last sentence uttered by him was that there was no other person when I was being assaulted.' The Magistrate noted that after making that statement the deponent became 'drowsy.' It is also stated in the note that after the drowsiness was over the deponent heard his statement and admitted it to be correct. It is clear that Umrao temporarily lost consciousness, but seemed to recover it before the statement was read out to him. We do not attach importance to the dying declaration which gives the place of assault to be a canal distributary and Imdad as the only assailant. It is doubtful whether he was in full possession of his mental faculties and was able to concentrate. Nowhere else in the evidence is the canal distributary mentioned as the place of occurrence. In defence a positive case has been set up; but there is little in common between the story for the defence and that for the prosecution.
3. It is alleged that one Asa Ram obtained a decree against Nasrat and others, whose crops were attached, and the appellant Ashiq was made a suparddar,' that on 10th May 1935 Nasrat and others, including Umrao, proceeded to the field in which the attached crops were and attempted to take them, that Ashiq protested and was assaulted. Ashiq, however, ran away, and was pursued by his assailants, when his father Imdad was seen coming from the opposite direction. Ashiq managed to run away, but there was some altercation between Imdad and the opposite party, which was followed by an assault on Imdad. The latter received 18 injuries, including two grievous hurts. Imdad's leg was fractured. The time of this occurrence, as given by the defence, is a little after sunset. Ashiq is said to have proceeded to Ghaziabad, where he narrated the incident to Asa Earn. Next day Ashiq made a complaint before a Magistrate at Ghaziabad. Imdad was taken to a hospital, where his injuries were examined by the doctor then in charge of the hospital. That doctor has since been transferred and has not been examined in the present case. The compounder who attended on him has, however, satisfactorily established that Imdad had 18 injuries, including the fracture of one of his legs and the dislocation of one of his fingers. Three eye-witnesses were examined in defence. Generally speaking, they support the case put forward on behalf of the defence. According to their evidence, Imdad was beaten by 10 persons, including Umrao. The witnesses have not said anything which may account for the injuries to Umrao. Their evidence, if true, shows that on the occasion referred to by them Imdad was beaten and received numerous injuries, including the fracture of one of his legs.
4. It is consistent with the theory that Umrao was assaulted subsequently in different circumstances of which they have no knowledge. (After discussing the statements of the three prosecution witnesses, their Lordships proceeded.) It will be seen that all the three witnesses for the prosecution had made an untrue statement in one important respect. All of them stated that Imdad joined the others in beating Umrao and that he himself had no injuries. Three alternative cases are possible as regards the circumstances in which Imdad was beaten. He was either beaten in the course of the fight in which Umrao also received injuries, or Imdad had been beaten some time before Umrao was beaten in different circumstances, or, thirdly, Imdad was beaten after the occurrence in which Umrao received injuries, the two occasions being different. We may summarily dismiss the third theory which was not suggested by anyone in the lower Court or before us. The evidence for the prosecution and the defence clearly negatives the second alternative, viz., that there was a free fight, between two groups of persons, resulting in injuries to Umrao and Imdad. The first alternative is the only one which can be considered to be plausible; and the learned Sessions Judge has accepted it. The learned Judge has observed:
In my opinion the truth of the whole matter is that in consequence of the beating of Imdad his two sons accompanied by Munshi accused went out armed with lathis to take revenge on any friend or relation of Karam Ali whom they might encounter in sufficiently favourable circumstances. Unfortunately for Umrao he happened at this moment to come out of his house and was promptly attacked, hit on the head and knocked down.
5. As already stated, this is a plausible theory; but it is no more than a theory. There is no warrant for it in the evidence on the record. It is true that part of this theory is to some extent proved by the evidence for the defence and the rest by the evidence for the prosecution; but each side ignores that part of the above version which was considered by it to be damaging. Assuming for a moment that the view taken by the learned Sessions Judge is correct, the witnesses for the prosecution cannot escape the charge of having perjured themselves when they stated that Imdad, with a fractured leg and a dislocated finger and 16 other injuries on his person, took a prominent part in beating Umrao. The learned Sessions Judge acquitted Imdad for obvious reasons; but he considered that the other accused must be held responsible for the injuries received by Umrao. The learned Judge appears to have felt some difficulty in arriving at that conclusion; but he got over it by a process of reasoning which we are unable to accept. We may quote with advantage the following passage from the judgment of the learned Sessions Judge on this part of the case:
It is of course clear that if this story is the true one, the prosecution witnesses have not been telling the whole truth, and if one were to be guided by the principle 'falsus in uno, falsus in omnibus' one must hold that the case is not proved by reliable evidence. This point has been discussed in rulings, more particularly in a recent ruling of our own High Court, and I do not think that that principle is generally accepted as applicable to cases in India. The statements of the prosecution witnesses in this case stand on almost exactly the same footing as the statements of witnesses in nine riot cases out of ten, who depose that a number of accused were present who are ultimately acquitted by the Court on the ground that their names have probably been added, because they are members of the actual offender's family.
6. It is true that the maxim quoted by the learned Judge is not the law to be administered by Courts in British India, which are guided by codified rules of evidence. According to the Evidence Act, Courts have to apply the standard of a prudent man which does not however totally disregard the salutary principle underlying the maxim. It is also true that cases not infrequently occur in which the evidence of a witness who has made an untrue statement in some respects is accepted as regards the rest of what he states. It is not however in pursuance of the supposed rule that, even where a witness has been shown to have deliberately perjured himself in one part of his evidence, he may yet be considered without demur to be a truthful witness as regards the rest of his evidence which has not been proved to be false. Such a rule is as dangerous as the unrestricted application of the maxim is impracticable. The correct rule to apply in such cases is that part of. the evidence of a witness, who has been guilty of untruth in some material particulars, may be accepted if such part is corroborated by probabilities and other reliable evidence which though insufficient by themselves to establish the guilt of a particular accused, nevertheless points to the truth of the statement of the witness directly implicating him. We may point out in this connexion that riot cases, in which the evidence is not accepted as regards some accused who are acquitted and is accepted as regards the others, are not in point, unless part of the evidence is held to be positively untrue. Evidence which is merely unconvincing or doubtful does not stand on the same footing as regards perjured evidence. Where the statement of a witness has been clearly proved to be untrue, there is no manner of doubt that the witness is prima facie unreliable; and if his evidence is not reinforced by something else, it is highly unsafe to accept it as the basis of conviction. Where however the Court considers one part of the evidence of a witness to be not free from doubt, it may well refuse to act upon it without destroying the value of the rest of it, as all that the Court implies, in not lacting upon one part of the evidence, is 'that it is not safe to accept it.
7. Coming to the facts of the present case we find that all the three witnesses for the prosecution have stated something which could not possibly have happened in that they swear that Imdad joined the appellants in beating Umrao. The question which we have to put to ourselves is whether there is any guarantee of the truth of the statements of these witnesses in so far as they implicate the appellants before us. Umrao received five injuries, one of which was grievous and dangerous, all the rest being simple. Those injuries could have been caused by one man, if he were armed with a lathi and Umrao was empty handed, as is alleged by the witnesses for the prosecution. It is quite possible that Umrao was beaten by any one of the three appellants and the other two were named because of ill feeling. It is not an uncommon practice for people to implicate all the members of a family, where only one or two actually assaulted. It is proved beyond doubt that the witnesses made common cause to implicate Imdad, who could take no part in beating Umrao. There is no other evidence which may ensure the truth of their statements so far as they implicate any particular accused. For aught we know, any two of the three appellants before us were implicated like Imdad by the witnesses and in the first information report which was made two days after the occurrence, and there was ample time for the supporters of Umrao to settle the details of the story which they wished to tell in Court.
8. Having given our careful consideration to all the circumstances of the case, we are unable to uphold the conviction of any of the appellants. Accordingly we allow the appeal, set aside the conviction and acquit the appellants, who shall be released, unless they are required for some other case.