O.P. Trivedi, J.
1. This appeal has been filed by Hari Har, Ram Sagar Matau, Rameshwar, Bansi, Nanhey, Sheo Das and Sri Krishna against their conviction and sentences passed by the Assistant: Sessions Judge, Bara Banki by his judgment and order dated 27-2-1969. Nanhey appellant has been convicted Under Section 326 read with Section 149, Indian Penal Code and sentenced to rigorous imprisonment for seven years and to a fine of Rs. 400/- in default of payment of which he has been directed to undergo rigorous imprisonment for a further term of eight months. The remaining appellants have also been convicted Under Section 326 read with Section 149, Indian Penal Code and each of them has been sentenced to rigorous imprisonment for five years and to a fine of Rs. 200/- and in default to and Sri Krishna have been convicted under (sic) Section 148.
Indian Penal Code and each of them has been sentenced to rigorous imprisonment for two years under that count. The rest have been convicted additionally Under Section 147, Indian Penal Code and each has been sentenced to rigorous imprisonment for one year. The sentences have been directed to run concurrently.
2. The victim of the incident was one Sheo Charan (P.W. 1). According to the prosecution case his house and the house of Hari Har appellant lay closeby in Village Baraulia, Police Station Ram Nagar, district Bara Banki. The house of Hari Har according to the prosecution existed there for the last about 15 years. Water of a spout used to flow from the house of Sheo Charan through land lying in front of the house of appellant Hari Har to which the latter used to object. This had been a cause of friction between this appellant and Sheo Charan for the last many years before the occurrence. Sheo Charan was prosecuted 4 or 5 years before the occurrence for the murder of one Gaya Prasad of the village. Gaya Prasad belonged to the family of Hari Har. The case ended in acquittal of Sheo Charan and this according to the prosecution further provided cause for secret bitterness to Hari Har against Sheo Charan. Sometime after acquittal of Sheo Charan in the said case there were proceedings Under Section 107, Code of Criminal Procedure in which the present appellant were arrayed on one side and Sheo Charan was. arrayed on the other side along with Baldeo Prasad (P.W. 4), Babu Lai (P:W. 5) and several others. About eight days before the instant occurrence there was another quarrel between Hari Har and Sheo Charan over the flow of water from the former's Nabdan on land in front of latter's house in which abuses were bandied and Hari Har parted after uttering threats to Sheo Charan. This according to the prosecution provided the immediate motive for the assault. It is said that on 15-4-1967 at about 4 P.M. when Sheo Charan was drawing water from a well lying in front of his house all the. appellants suddenly came armed with various weapons. Bansi, Nanhey and Sri Krishna had Kantas; Nanhey possessed a knife also and the remaining appellants carried lathis. They set upon Sheo Charan with, these yeapons and caused him a number of injuries. After he had fallen Nanhey took out a knife and struck with it at both of his eyes. The alarm of the victim attracted Jagannath (P.W. 3), Baldeo Prasad (P.W. 4), Babu Lal (P.W. 5) and several other witnesses who were said to have seen the assault, Sheo Charan was then carried on a cot to the police station which was 7V2 miles away and the first report of the incident was lodged by him at 0.30 hours on 16-4-1967 containing a substance of the above narrative. In this report all the appellants were named. Sheo Charan Was examined by Dr. D. M. Saxena who found on his person 22 injuries including six incised wounds a linear cut four abrasions, a swelling and contusions. All these injuries were pronounced by the doctor to be simple in nature. He had found one incised wound on the left upper lid below the left eye-brow and another incised wound on the right upper lid in the middle. Investigation was commenced by the Station Officer Incharge Police Station Ram Nagar on 18-4-1967 after his return to the police station from leave. He found blood lying at the place of occurrence and seized bloodstained earth but there was no evidence to suggest that it - was sent to the Chemical Examiner or the Serologist.
3. All the appellants pleaded not guilty to the charges framed against them and alleged false implication, They disputed not only the place but also the time of assault suggested in the prosecution story and maintained that the complainant was assaulted by some unidentified persons in the darkness of night.
4. On the main occurrence four witnesses were examined for the prosecution; Sheo Charan (P.W. 1), Jagannath (P.W. 3), Baldeo Prasad (P.W. 4) and Babu Lai (P.W. 5). The trial Judge did not feel satisfied that Baldeo Prasad (P.W. 4) and Babu Lai (P.W. 5) had opportunity of seeing the occurrence. He was not satisfied also about their trustworthiness and I entirely agree with the reasons given by the trial court for discarding the evidence of those two witnesses, Jagannath (P.W. 3) claimed before the committing Magistrate to have seen the occurrence from a point 10-15 paces from the door of his own house and nominated the present appellants as the assailants but he resiled from this statement at the trial where in chief examination his statement was that he had seen the assault on Sheo Charan at his house at 6 P.M. but could not recognise the assailants. In cross-examination he stated that he had heard shouts and seen persons collected in front of the house of Sheo Charan at the aforesaid time and two hours after nightfall he heard that Sheo Charan was assaulted. The statement of the witness made before the coffle knitting Magistrate (Ext. Ka 3A) was used by the trial Judge Under Section 288, Code of Criminal Procedure. The question therefore arises whether the statement of, Jagannath made before the committing Magistrate should be used against the appellants Under Section 288, Code of Criminal Procedure. I am of the opinion for a variety of reasons that that statement of Jagannath should not be used in this case. Firstly, the fact that Jagannath had an opportunity of seeing the assault is itself open to serious doubt in view of contradiction in his statement and that of complainant Sheo Charan. Whereas Jagannath claimed before the committing Magistrate to have seen the occurrence standing 10 to 15 paces from the eastern door of his house, the statement of complainant Sheo Charan (P.W. I) was that Jagannath and other witnesses, namely, Baldeo Prasad, Babu Lal and Maiku etc., had come to the spot when the assault was going on. The witness clarified that Jagannath was at the door of the house of Rameshwar. There is no suggestion in the statement of Jagannath before the committing Magistrate that he went anywhere near the place of assault or that he witnessed it from the door of Rameshwar's house. Secondly, Sheo Charan revealed that the house of Jagannath was situate after 4 or 5 houses from his own house. The prosecution did not lead any evidence to establish what was the distance of the place of occurrence from the house of Jagannath. It was the duty of the prosecution to establish that Jagannath saw the occurrence standing at a place from where the place of occurrence was visible to him. There is no such evidence. On the other hand, before the trial court Jagannath stated in cross-examination that his house was 300 yards away from the scene of occurrence. That statement of the witness may be true in which case it would be doubtful in the extreme that he could recognise the assailants from that distance.
Thirdly, when a witness resiles before the trial court from a statement made by him previously before the committing Magistrate before his previous statement can be used Under Section 288, Code of Criminal Procedure the question must always arise as to why preference should be given to the previous statement of the witness over his subsequent statement at the trial. Ordinarily a witness who makes two contradictory statements on oath at two different stages and in any case if he resiles from a statement made earlier during enquiry and does not support the prosecution at the trial he exposes Mmself to the charge of being a person who has scant regard for truth and that in itself should be a ground to put the court on its guard for it may well be that the previous statement was made by the witness before the committing Magistrate falsely as a result of tutoring and he may have stated the truth upon remorse subsequently at the trial. In a situation of this kind as a rule of caution the court must be satisifed from some other material that may be on record that the previous statement of the witness made before the committing Magistrate was true before using the same Under Section 288, Code of Criminal Procedure. That assurance about reliability of the previous statement of the witness before the committing Magistrate can be derived from independent corroborative evidence either direct or circumstantial. Where however no independent corroboration is available ordinarily the courts will refuse to act on the statement of a witness brought in under Secton 288, Code of Criminal Procedure unless the court is clearly satisfied that the evidence of the witness made before the committing Magistrate was true and can be safely relied upon. In the case of Sharnappa Mutyappa Halke v. State of Maharashtra. : 4SCR589 their Lordships delivered themselves of the following observations:
Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other words, before one decides to accept the evidence brought in Under Section 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true. If there be a case-and there is such infinite variety in facts and circumstances of the cases coming before the courts that it cannot be dogmatically said that there can never be such a case-where even without such extrinsic support the Judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, the Judge will be failing in his duty not to do so.
For reasons which t would shortly state in my view no independent corroboration from extrinsic evidence either direct consisting of the evidence of complainant Sheo Charan or any circumstantial is available in the present case to the statement of Jagannath before the committing Magistrate, nor am I otherwise satisfied on a consideration of the differing statements of the witness made on oath that the evidence given by him before the committing Magistrate was in fact true and could be safely relied upon. Reference may be made in this context to observations made by Nunavut, J. in the case of Pahalwan Singh v. Emperor A.I.R. 1934 Oudh 182, said his Lordship:
The depositions of witnesses recorded by the committing Magistrate, may, at the discretion of the presiding Judge, be read as substantive evidence in the Sessions Trial, but Section 288 does not prescribe the value or weight to be attached to such evidence when it is admittedly by the Court of Session at the trial of the case. Before the conviction of the accused on the basis of such previous statements can be legally supported, there must be independent corroboration of the truth of the statements made by these witnesses before the committing Magistrate, and there must be sufficient reasons for preferring the evidence of these witnesses made before the Magistrate to die evidence of these some witnesses made before the Court of Session.
Not being satisfied therefore that Jagannath had the opportunity of seeing the assault and recognising the assailants and not being convinced that the statement made by him before the committing Magistrate was true and there being no independent corroboration available, to my mind it would be clearly unsafe to act upon the previous statement of Jagannath Under Section 288, Code of Criminal Procedure. That evidence therefore must also he discarded.
5. It remains now to consider whether the evidence of complainant Sheo Charan is worthy of reliance, ordinarily the evidence of an injured witness must be ranked high and should receive credence inasmuch as such a witness does not ordinarily screen the real offender and does not in his place involve an innocent person. But even in the case of an injured witness the question must always arise whether he had opportunity of seeing, recognising or identifying the assailants and whether there was a possibility of false implication of innocent persons when the real assailants were unknown to him. Examining the evidence of Sheo Charan from this angle I notice a number of disquieting features which show that it is not safe to place implicit reliance upon his testimony- Applying the test of probability to the evidence of Sheo Charan it will appear that no convincing immediate motive for the assault by the appellants was made out. It is not disputed that relations between the appellants on one side and Sheo Charan were inimical because admittedly there were proceedings Under Section 107, Code of Criminal Procedure between the two parties but enmity is always a double-edged weapon, while it may provide motive to the accused persons for attack it may equally actuate false implication. In so far as the prosecution of Sheo Charan for the murder of Gay a Prasad who was said to be distantly related to Hari Har appellant and complainant's ultimate acquittal is concerned, it was an incident 4 or 5 years old and therefore could not serve to explain the instant assault. Secfiwadly, the nature of injuries is not explained by the incident in which the complainant was prosecuted for the murder and acquitted for if the assault was motivated by vendetta for the murder of Gaya Prasad then Sheo Charan could not have been allowed to get away with only simple injuries and a notable role should have been played by Hari Har. As for the quarrel said to have taken place between Hari Har and Sheo Charan eight days before the occurrence over flowing of water from the complainant's Nabdan and which was according to the prosecution the immediate motive for the occurrence, again the evidence does not satisfy the test of probability. According to the statement of Sheo Charan, Hari Har used to cause obstruction to the flow of water from complainants Nabdan and there were quarrels on two previous occasions between the two on this issue, but no report was ever lodged by Sheo Charan with the police. The quarrel over flow of water according to the witness had taken place in the month of April before the occurrence. The timing of the quarrel also appears unconvincing as it was unlikely that in a summer month so much water should have flown over the complainant's Nabdan towards the appellant's house as to be a cause for objection. Thirdly, according to Sheo Charan his house stood by the house of Hari Har for the last about 15 years. It is therefore singular that quarrel of such a serious nature should have occurred over the flow of water between these two persons only a few days before the occurrence as to provoke the appellants to an assault.
Finally, there was no independent evidence at all to establish that water from the spout of the house of Sheo Charan ever flowed on land in front of the door of Hari Har or that there was any quarrel between these two persons over the flow of water or that there was any such quarre eight days before the occurrence. Sheo Charan disclosed in cross-examination that Rameshwar, Cnauhan, Sarju Prasad, Dayal and Bisheshwar were his close neighbours. None of jhese persons came forward to support Sheo Charan on this point. Having regard therefore to the probabilities in the absence of any supporting independent evidence it is doubtful that there was any quarrel between Hari Har and Sheo Charan over the flow of water before the instant occurrence with the result that evidence of Sheo Charan failed to establish any immediate motive against the appellants. Secondly, the time and place of occurrence are also in doubt. Sheo Charan revealed in cross-examination that threshing operations were going on in his threshing floor on the day of occurrence and that his threshing floor was about a furlong away from his house. He admitted further that he was personally supervising this work and that he used to remain in the Khaliyan those days till about 4 hours after nightfall. That being so the natural place for Sheo Charan to be at 4 P.M. on 15-4-1967 should have been his Khaliyan and this made the story that he was drawing water from his well improbable and doubtful. Evidence was led to show that blood-stained earth was seized by the investigating officer from a place close to the residence of Sheo Charan but there was no evidence to show that any such earth was sent to the Chemical Examiner and the Serologist for test. At least the reports of the Chemical Examiner and Serologist were not produced with the result that there is no definite evidence on the basis of which one could say that if was established that the assault took place near the- house of Sheo Charan. In the context of what has been stated above making the presence of Sheo Charan anywhere near his house doubtful at 4 P. M., the delay in lodging the first report at the police station assumes significance and furnishes an additional factor creating doubt in the mind that Sheo Charan may have been assaulted at some other place in the hours of darkness and the version given by him may not be true.
The cross-examination of Sheo Charan shows that he has little regard for truth. He prevaricated on a number of points. He first stated before the trial court that his wife was not married to any one earlier and denied that she was married earlier to a person in Village Bechnapur but before the committing Magistrate his statement was that he did not know who was her former husband and that he did not know also what was the place of residence of her former-in-laws. He was unable to explain these contradictions. The defence suggested that he had abducted some woman and was not married to her. When cross-examined on this the witness was unable to give an idea of the location of the post office or the police station of the village from which hailed his wife. It is relevant also to note here that the statement of Sheo Charan before the trial Court to the effect that both his eyes were pierced through with a knife during the occurrence was not supported by medical testimony which was to the effect that all the injuries on his person were simple and none of the injuries could produce blindness. The cross-examination of the witness disclosed that he. had shady antecedents having been convicted for three dacoities, remained under police surveillance and was convicted for illicit distillation. There could be no dearth of enemies, known and secret, for a person of such history. It may well be, as suggested for the defence, that he was keeping some woman in his house after kidnapping or abduction and may be involved in some sex offence. Indeed, the tell-tale injuries in the lids of both the eyes of the victim may indicate that the assault was provoked by some such offence and that the assailants may be different than the appellants. On a consideration of all these tacts I am of the opinion that the evidence of Sheo Charan is not of a character on which implicit reliance could be placed and that it will be clearly unsafe to hold the appellants guilty on his solitary and uncorroborated evidence. To my mind the guilt has not been brought home to the appellants beyond reasonable doubt and they should be acquitted.
6. I allow the appeal and set aside the conviction and sentences of all the appellants. They are on bail. They need not surrender to their bail bonds which stand diseharged. Fine, it paid, shall be refunded to them.