Piggott and Walsh, JJ.
1. Hansraj Singh Jat, resident of village Bisokhar in the Meerut District, has been convicted by the Sessions Judge of Meerut on a charge under Section 302, Indian Penal Code, of the murder of his caste fellow and neighbour Ganga Baksh. The record is before us for confirmation of the sentence of death passed by the Sessions Court and Hansraj Singh has appealed against his conviction and sentence. The position of the parties and the relations existing between them, prior to the violent death of Ganga Baksh on the 15th of October last, may be stated as follows. Hansraj Singh 'is a zemindar of the village of Bisokhar. He is not the sole proprietor of the village, but is one of a group of zemindars. Ganga Baksh deceased was a tenant of an occupancy holding of some value in that village. It seems to be an admitted fact that he held this land of Hansraj Singh, and not of any other zemindar or zemindars of the village. Ganga Baksh was getting on in years. The evidence as to his age is of some consequence in its bearing on various debated points in the case and it is not as satisfactory as ore might wish; but it seems reasonable to take it that be was about 65 years of age. He was a widower and childless; his sons and grandsons, if any, had predeceased him. Up to about the year 1910, he had living a grand-nephew of the name of Amin Chand, but Amin Chand also died about six years before the matters with which we are concerned in this case. Amin Chand left him surviving a widow, Musammat Bharto, and two young children. This woman and her children lived with Ganga Baksh in his house. In the event of the death of Ganga Baksh leaving no heir entitled to succeed him under the provisions of the local Tenancy Act, his holding would escheat to his zemirdar, that is to say, to Hansraj Singh. There can be no doubt that this fact was fully appreciated by all the parties concerned and that it led to friction and ill-will between Ganga Baksh and the appellant. The children of Amin Chand were the natural heirs of Ganga Baksh under the Hindu Law, and they would succeed to his tenancy if it could be shown to the satisfaction of the Revenue Courts that they were sharing in the cultivation of the holding with, Ganga Baksh at the time of the latter's death. This might well be a fact not easy to establish as regards the two little boys, the elder of whom was apparently eleven or twelve years of age; but the older the boys; grew the easier it would be for Ganga Baksh to associate them in the cultivation in such a manner as to put their right to succession beyond the range of controversy. There is a suggestion in the first report made in this ease by Musammat Bharto that Ganga Baksh had been trying to get the name of, his younger nephew recorded in the village papers as a co-tenant of the holding with himself; but this suggestion is not supported by anything in the evidence and is apparently untrue. It is, however, certain that in the month of September last, Ganga Baksh executed and caused to be registered a certain deed in favour of the younger son of Amin Chand. In this deed it is stated that Ganga Baksh had formally adopted this boy Bhure as his own son, and the document further contains words obviously intended to operate as a bequest in favour of Bhure, whether or not the adoption were found to have taken place. We need not labour the point that any steps taken by Ganga Baksh in order to secure the succession to his holding to either or both of the children of Amin Chand were calculated to irritate the appellant, by depriving him of his reasonable hope that this holding would escheat to him as zemindar on the death of Ganga Baksh without any heir capable of succeeding to the same. Moreover, there is evidence that the ill-feeling between the parties had gone somewhat further than this. Ganga Baksh had brought a charge against Hansraj Singh and other persons, in which he alleged that they had damaged his field and assaulted him. This case was tried by a Magistrate and concluded by a judgment dated the 22nd August 1916. By this judgment the accused persons were all acquitted, and it is to be noted that the Magistrate expressed himself somewhat strongly against the complainant Ganga Baksh and clearly formed the opinion that the bringing of this charge was due to a feud in the village, in which another zemindar, a Jat of the name of Balwant, was the head of one party and the appellant Hansraj Singh of another. On the 11th of October 1916 an application was made to the Magistrate on behalf of Hansraj Singh to sanction the prosecution of Ganga Baksh for having brought a false charge against him. That application was pending when Ganga Baksh met his violent death in the early morning of October the 15th.
2. The first report of this crime was made at the Police Station of Begamabad shortly after 8. a. m. on the morning of October the 15th by the aforesaid Musammat Bharto. She was accompanied to the Police Station by two persons, one Thana son of Kallu Jat, and Ram Kalan the village chowkidar of Bisokhar. The report, however, was made by Musammat Bharto alone. She speaks of Ganga Baksh as her father-in-law and gives an account which has not altogether been borne out by the evidence as to the dispute between Ganga Baksh and his land-holder about the question of the succession to the former's holding. She then states that, on the previous night about the time of the evening meal, Ganga Baksh had been sent for to the baithak or house of business of his zemindar. When he returned he made a statement to the woman, to the effect that Hansa had told him that if he ploughed his field next morning he would get a beating. The report goes on to state that on the following: morning, sometime before daybreak, the time is defined as being at the rising of the morning star, Ganga Baksh took his plough and two bullocks and went out to his field. The sun had not yet risen when Nanwa Jat, a resident of the neighbouring village of Qadirabad, came to Musammat Bharto at the house and told her that Ganga Baksh had been beaten by two men, one being the appellant Hansraj Singh and the other a caste fellow, and apparently a distant relative of the appellant, named Hoshiar Singh. Nanwa did not say what the result of the beating had been. He told the woman to go and see whether Ganga Baksh was dead or alive. She went to the field and found Ganga Baksh lying dead there, and she concludes her report by formally accusing Hansraj Singh and Hoshiar Singh of the murder.
3. Sub-Inspector Muhammad Fasih took up the enquiry with great promptitude. He found the dead body of Ganga Baksh lying in the field as stated, and he made certain observations on the spot to which we have to refer presently. He was unable to find either Hansraj Singh or Hoshiar Singh in the village, and it would appear that Hoshiar Singh is still absconding. Hansraj Singh surrendered himself some days later, The evidence for the prosecution may be considered under three distinct heads, two of which are of comparatively small importance. There is evidence as to motive which is directed to prove the facts already stated. These facts may be taken as established. There is, in the second place, certain evidence the object of which is to contradict beforehand the defence set up by Hansraj Singh. A word or two may be said at once with regard to this part of the case. It so happened that Hansraj Singh was at Ghaziabad on October the 14th, In his defence he asserts that he did not return to his village from Ghaziabad, but proceeded to Delhi and thence on a certain journey, in the course of which he finally came to know that this charge of murder had been brought against him in his absence. The prosecution undertook to anticipate this defence by proving that Hansraj Singh returned to Begamabad by train, on his way to his village on the evening of October the 14th, and that both he and the missing man Hoshiar Singh were seen openly present in the village on the early morning of October the 15th. On behalf pf the defence two witnesses of position and respectability were called to prove that Hansraj Singh was in Delhi on the evening of October the 14th and morning of October the 15th. With regard to this part of the case we are content to say that we are not prepared to differ from the view taken of the evidence by the learned Sessions Judge. The defence witnesses to the alibi may very possibly be putting down the events of Sunday evening to the previous Saturday, and the evidence for tb6 prosecution as to the return of Hansraj Singh by train to Begamabad seems satisfactory. So far, therefore, we may take it that Hansraj Singh did return to his village on the evening of October the 14th, and that he found it expedient to go upon a sudden journey to Delhi and elsewhere in the course of the following day, so that he has not told the truth with regard to his movements immediately before and immediately after the crime Having said , this much, it is perhaps advisable that we should remark at once that under all the circumstances it is very easy to press too far against an accused person the fact that he judged it expedient to make himself scarce for a time when he learned that a charge of murder was being brought against him and was likely to be substantiated by direct evidence, and that he had not chosen to tell the plain truth to the Court about his reasons for so acting. It is also fair to say that, if this part of the prosecution case is to be regarded as established against the accused, it must be taken, further, that at about daybreak on October the 15th, Hansraj Singh and Hoshiar Singh were showing themselves openly in the village, as men who had not at that moment any reason to fear molestation by the Police. The really important part of the prosecution case, however, is the direct evidence as to what is alleged to have happened very early in the morning of October the 15th. On this point we have the statements of two witnesses, both of them Tats by caste; one of them Bhagwana, a resident of the appellant's village of Bisokbar, and the other Nanwa, a resident, of the neighbouring village of Qadirabad. Both these men are tenants of the man Balwant who has already been referred to as an enemy of the appellant. Their statements require to be considered along with that of Musammat Bharto, and also along with that of Sub-Inspector Muhammad Fasih as to the facts observed by him in Ganga Baksh's field. The time to which the evidence of these witnesses refers is a matter of considerable consequence. It cannot have been before daylight, because Nanwa distinctly deposes that he was able to see Ganga Baksh and his two assailants from a distance of 150 yards. It is perhaps not quite certain whether the witness meant to depose that he could recognise them at that distance, but he certainly professes to have recognised them from a distance of 40 or 50 paces. On the other hand, it is quite clearly and definitely a part of the prosecution case that the murder of Ganga Baksh was over, and Nanwa bad reached Musammat Bharto's house with his information, before sunrise. We may turn back for a moment to the statement in the first report that Ganga Baksh had left with his plough and bullocks about the time of the rising of the morning star. We have consulted an almanac on this point. The morning star in the early part of October last was Venus. The planet was at that time exceptionally bright. She became visible above the horizon at about 2 a. m. and continued visible until after sunrise. The distance of Ganga Baksh's field from his house seems to have been between two and three furlongs. According to the evidence of Musammat Bharto, strictly interpreted, he must have left his house before 3 a. m. and he must have been killed before sunrise, and yet at a time when the day had definitely broken. To return to Nanwa and Bhagwana; the former says that he had come out to have a look round certain fields of his. From a considerable distance he heard an altercation going on in the field of Ganga Baksh. Hansraj was abusing the old man. The witness went towards the altercation and, according to his evidence he must have gone a distance of about 100 yards while the altercation was still going on. He reached a certain well, which seems from the Sub-Inspector's plan to be situated at one corner of Ganga Baksh's field, and there he was joined by the witness Bhagwana. At that moment Hansraj was still continuing to abuse Ganga Baksh and reproaching him for having came to plough his field after he had been distinctly told not to do so. Then Hansraj Singh called upon Hoshiar Singh to beat Ganga Baksh, and thereupon Hoshiar Singh struck the old man with a lathi on the head and felled him to the ground. Thereupon bath the witnesses went away and saw nothing more. Nanwa went straight to Ganga Baksh's house in Bisokhar and told Musammat Bharto what he had seen. Questioned as to his subsequent movements, he said he went back to his own fields by another way. He did not go to the scene of the murder again. As an explanation of his conduct he said that he was afraid and did not wish to be mixed up in the business. Questioned as to what he saw in Ganga Bakhsh's field, he said that he had observed a pair of bullocks yoked and standing beside the plough. Bhagwana deposes that he was on his way to Qadirabad, that is to say, to the very village Nanwa had come from. His object in going to Qadiratbad was to see a certain Amin Darzi who had done some work for him. It would seem from his evidence that this witness had not yet heard anything when he came upon Nanwa standing by the well. He asked Nanwa what the latter was doing there, and Nanwa then called his attention to the altercation going' on in Ganga Baksh's field. The witness then heard Hansraj Singh abusing Ganga Baksh and reproaching, him in violent terms for having come to plough the field. The appellant next called upon Hoshiar Singh' to beat Ganga Baksh and the witness saw a single lathi blow struck in the manner already described. He then went off in the direction of Qadirabad and saw Amin Darzi as he had originally intended.
4. What we really have to decide in this case is whether we should believe the evidence of these two witnesses. The two Assessors, who heard the evidence, were clearly of opinion that, whatever might be the truth about this case, the evidence of these two witnesses was not true. They did not believe that Ganga Baksh was ploughing his field at all on the morning in question, and gave as their reason for this disbelief that the ground was waterlogged at that time by heavy rainfall in the early part of the month of October and that no cultivator would be likely to plough his field at that time. In this opinion which they formed they have drawn mainly on their own personal observation and experience, but they are also corroborated by evidence actually on the record. Nanwa admits that he could not see anybody else ploughing anywhere in the neighbourhood of the village. Bhagwana says that he himself had not begun ploughing because there had been a lot of rain and his fields were under water. He says that he saw some ploughing going that day at Qadirabad, but did not notice any one excepting Ganga Baksh ploughing in Bisokhar. The Sub-Inspector admits that the field was very wet and a portion of it was under water. He says, however, that some one had unquestionably been ploughing in the field that morning. There were fresh marks of ploughing. There were marks showing that bullocks had been standing, and even sitting in the field. They had left their dung at the place where they had been sitting. The learned Sessions Judge has laid a very great stress on this evidence. He brings up the point over and over again in his judgment on different occasions. Arguments as to the doubtful nature of, a portion of the prosecution evidence, or the credibility of a portion of the defence evidence, are met by the learned Sessions Judge repeatedly by the application of the Sort of test, namely, whether the evidence under consideration is or is not consistent with the fact that Ganga Baksh was ploughing his field on the morning in question when be was set upon and killed The learned Sessions Judge treats this fact as almost axiomatic, or at any rate as established beyond possibility of question by the evidence of the Sub-Inspector Muhammad Fasih, independently altogether of the question whether Musammat Bharto, Nanwa and Bhagwana are or are not witnesses of truth. Now this is a crucial point in the case, and it is en this point we must express our dissent, from the view taken by the learned Sessions Judge. In the first place, we find it-difficult to understand the evidence of the Sub-Inspector precisely in the sense in which it seems to have been understood by the learned Sessions Judge. A point of some consequence which we have to consider was the amount of ploughing supposed to have been done in the field on that very morning. Any one reading the Sub-In-specter's evidence as it stands, either in the vernacular or in the Sessions Judge's notes, would understand the witness to depose, that only two furrows had been drawn, or rather one complete furrow and a portion of a second, right in the middle of the field. Apparently the Sub-Inspector, in the course of his examination, made a rough sketch upon a piece of paper which has been brought on the record as an exhibit, and this sketch would seem to have conveyed to the learned Sessions Judge quite a different impression, namely, that a considerable portion of the field had been completely ploughed and that a beginning had been made of ploughing another portion, before the work was interrupted We can only say that this is not the meaning conveyed to us by the record of the Sib-Inspector's evidence, and that it ii unfortunate that there should be any room for doubt upon the point. Secondly, it is to be noted that, when all is said and 'done, the evidence as to the facts observed in Ganga Baksh's field after 9-30 A. M. on October the 5th is the uncorroborated statement of Sub-Inspector Muhammad Fasih. We would not be understood to say that we definitely disbelieve any portion of this evidence or to accuse the Sub- Inspector of having deposed to anything which he did not believe to be true. At the same time, the investigating Sub-Inspector cannot be treated as an entirely independent and disinterested witness in a matter of this sort. He has an interest in securing a conviction, and it is his duty to secure the conviction of the accused, if he honestly believes him guilty, and if he can do so by honest and truthful evidence. He cannot, therefore, be regarded as an unbiassed witness, and it is a mere matter of experience that a man's impression of his own observations of a particular locality may easily be coloured by his own wishes or prepossessions. If in a matter of this sort it is intended to rest the prosecution case to a material extent upon observations said to have been made on the spot by the investigating Police Officer, it is well that such officers should be taught the advisability of securing for their observations the same sort of corroboration by independent witnesses that they are required to secure in connection with their first inspection of the corpse and the preparation of the inquest report on the same. In the third place, it might be conceded that the Sub-Inspector found certain marks, that is to say, newly drawn furrows and traces of the recent presence of cattle in the field in question, after 9-80 a. m. on the morning of October the 15th and yet those marks might not have been there when the sun rose. It must be remembered that the appellant challenges the prosecution, case in every particular. He has suggested all along that the hand of his enemy Balwant had been at work against him, and we shall have to remark presently that his contention on this point is not wholly unsupported by evidence. If as a matter of fact Ganga Biksh was not killed in his field, but an attempt was made to produce false evidence to that effect, the person; or persons responsible for this evidence would not find it impossible to prepare some material corroboration of this assertion, while Musammat Bharto was on her way to the Police Station; and in the present case there is one circumstance' which is not easily explained by the prosecution theory. It has to do with the pair of bullocks. We have already pointed out that Ganga Baksh was quite an old man. The defence have produced evidence to the effect that he did not own a pair of bullocks and that he had not been doing his own ploughing for some years before he met with his death. The learned Sessions Judge considers this evidence largely rebutted by the fact that the prosecution were able to prove that Ganga Baksh had bought one bullock on a certain date not long previous to his death. The fact remains, however, that in the course of the previous prosecution, namely, the one which ended in the acquittal of Hansraj Singh and his co-accused on the 22nd of August 1916, Ganga Baksh had stated himself that he did not possess any bullocks. Now when the Sub-Inspector reached the spot there were no bullocks forthcoming. Musammat Bharto could not explain what had become of them, except that they had run away. The witness Nanwa says that he saw a pair of bullocks yoked and standing by the plough. Assuming the prosecution case to be that they took fright and ran away, it seems curious that nothing in the observations made by the Sub-Inspector suggests that the plough was overturned or dragged irregularly along the ground. Moreover a pair of bullocks rushing off in a panic with a yoke upon them are not likely to escape to any great distance; yet these bullocks simply disappeared, and the Sub-Inspector himself had to admit in cross-examination that there was no appearance on the spot of the bullocks having run away. The Inspector says that they were brought by a certain boy, who was not called as a witness, about 10 or 11 O'clock in the day. There is something suspicious and unexplained in the prosecution theory about the disappearance of these animals and the absence of evidence as to what had become of them up to the time when the Sub-Inspector's investigation commenced. If they were really brought, to him between 10 and 11 a. m., he himself having only reached the spot at 9-30 A. M., this means practically that they must have been produced before; him as soon as it occurred to him to ask what had become of the bullocks. Finally, on this part of the case, it might be observed that the whole of the Sub-Inspector's evidence might be true, and might be true in the sense in which it was understood by the Sessions Judge, and yet the inference based upon it in the judgment of the Court below would not follow as a necessary and inevitable one. At the very utmost it would only be a proof that some one had been ploughing in the field in question on that morning. Even if it were proved that this ploughing had been interrupted by an altercation which ended in the assault and killing of Ganga Baksh, it would not follow that Ganga Baksh was doing the ploughing. As a mere question of general probability, it is more easily conceivable that some one else was trying to plough Ganga Baksh's field on the morning in question and that Ganga Baksh was assaulted for interfering. The hour was not an usual one for commencing to plough. It would seem that the field was not in a condition in which a tenant would be likely to begin to plough in the ordinary course of things. Moreover a zemindar who is trying to turn a tenant forcibly out of his holding, or some portion of his holding, would usually do so by getting somebody else to go down and begin cultivating the fields. It is far easier to do this than to keep a perpetual watch to see that the tenant never comes near the place with a plough. For all these reasons we find it impossible to concur in the view taken by the learned Sessions Judge' that the whole evidence in the case must necessarily be regarded from the point of view that it is beyond question that Ganga Baksh had begun ploughing his field on that morning and was assaulted while he was so doing. To our minds, on the contrary, it is open to very distinct doubt whether Ganga Baksh was ploughing his field that morning or not. Of course he was ploughing, if Nanwa, Bhagwana and Musammat Bharto are speaking the truth. That only, brings, us back to our starting point. The real, question is whether we should believe these three witnesses.
5. In this connection one or two points made by the defence require to be considered. The evidence of Babu Ram Sarup, a Pleader practising in the Meerut Courts, does quite definitely prove the existing ill-feeling between the appellant and Balwant Singh. There is other evidence to the same effect, but that of Babu Ram Sarup appears decisive. The witness Bhagwana has given the object of his early morning journey to Qadirabad, namely, his intention to see Amin Darzi. The defence produced Amin Darzi as a witness and he gave Bhagwana the lie direct. It is easy to suggest that evidence of this sort must be disregarded on the ground that an influential zemindar in the position of the appellant would not find it difficult to procure such evidence; but there is nothing proved against the witness Amin Darzi. He is not a tenant of the appellant, and has not been shown to be a tenant of any one likely to be under the influence of the appellant. Whatever influence Hansraj Singh may possess in the village of Bisokhar, it has not been sufficient to prevent two of his own caste fellows from coming into Court and giving direct evidence against him on a charge of murder. The next point in the defence is the statement of the chowkidar Ram Kalan. This really is of considerable importance. Musammat Bharto in her evidence said that, after she had seen Ganga Baksh lying dead, she started for the Police Station and casually met Ram Kalan somewhere in the outskirts of the village and took him along with her. This statement is intrinsically improbable, because it is almost certain that the chowkidar would have insisted on seeing the corpse before he started for the Police Station. In the next place, Musammat Bharto was certainly equivocating in this part of her evidence, because she tries to get away from the fact that one Thana Jat had also accompanied h9r to the Police Station. She tries to make out that her only other companion was one of her little boys. When, therefore, Ram Kalan distinctly contradicts Musammat Bharto with regard to a certain portion of her evidence, he certainly seems to be the more credible witness of the two. Ram Kalan deposes that he was sent for shortly before sunrise by Balwant Singh, the man already referred to as hostile to the appellant. He went to Balwant's baithak or house of business, and there found a number of persons assembled, including the witnesses Nanwa and Bhagwana and the man Thana who afterwards accompanied him to the Police Station. These persons told him that Hansraj and Hoshiar had killed Ganga Baksh, and he was asked to go and look at the corpse and to see that these facts were reported at the Police Station. The witness saw the dead body of Ganga Baksh and then went with Musammat Bharto and Thana to the Police Station. The learned Sessions Judge has taken a strongly unfavourable view of the evidence given by this witness. He thinks that the man deliberately perjured himself and that he deserves to be severely dealt with by the superior officers of the Police Department, though apparently he does not think it advisable to prosecute him on a charge of perjury. As far as we can make out, two points are made by the Sessions Judge against Ram Kalan. One is that he had given evidence for Hansraj Singh in the previous case brought against the latter by Ganga Baksh. Surely this ought not to be allowed to influence the mind of the Court. Hansraj Singh was acquitted in that case and acquitted in the judgment which amounts to a strong condemnation of the falsity of the complaint. We do not know what evidence Ram Kalan gave in that case; but the presumption under the circumstances is that he was called as a witness by a man who had been falsely accused and that he gave true evidence. The other point made by the Sessions Judge is that Ram Kalan ought not to have allowed Musammat Bharto to make the report which she did, or at any rate ought to have informed the investigating Police Officer of the circumstances under which he was sent to the Police Station. This argument is not without force; but we think it has been pressed much too far. The witness is a Koli by caste, that is to say, he is a man belonging to a menial caste, who happens to have been selected for the post of village watchman. Musammat Bharto was not alone when she reached the Police Station. She was accompanied by the man Thana, who could only have gone with her, on any possible theory of the case, in order to see that she was not interfered with and that she made the report which she had it in her mind to make. It is postulating a degree of manliness, independence and intelligence on the part of a village watchman which it seems really unreasonable to expect, that he should have thrust himself between Musummat Bharto and the Sub-Inspector at the Police Station and insisted upon putting forward a statement of his own to qualify or throw doubt upon the report which the woman had to make. It is quite conceivable that the witness himself did not realise the significance of the facts observed by him, or the light which they might throw on the prosecution evidence when the matter came to trial hereafter. Ram Kalan's statement that he never told the investigating Police Officer what he had seen might be either true or false without really discrediting the witness to such an extent as to justify his evidence being swept aside in the manner in which it has been in the Court below.
6. There is one more point in the judgment of the learned Sessions Judge which requires comment before we come to our conclusions. Sub-Inspector Muhammad Fasih was permitted to make certain statements and to make them in examination-in-chief, which he should not have been allowed to make, in order to influence the mind of the Court. There is a significant paragraph in the judgment of the learned Sessions Judge commencing with the words: 'As to the third fact etc.,' which shows the manner in which this inadmissible evidence has worked upon the mind of the Court. It would seem that the learned Sessions Judge felt that, whatever weak points there might be about the case for the prosecution, the defence had not merely failed to suggest any alternative theory as to how Ganga Baksh met with his death, but had actually put forward and failed to substantiate a false alternative theory. This view is based on a statement in the1 evidence of Sub-Inspector Muhammad Fasih to the effect that in the course of his enquiry two persons, named Mohar Singh and Khazan, had come forward and told him something about the way in which Ganga Baksh had been killed. Neither Mohar Singh nor Khazan was produced as a witness in the case, either for the prosecution or for the defence; and it is surely an elementary principle of the law of evidence that the Sub-Inspector should not have been allowed to depose to a statement said to have been made to him by these two individuals. He was not only allowed to depose to this, but he was permitted to state in substance, though in somewhat veiled language, that he had investigated the story put forward by Mohar Singh and Khazan and found it to be false. This sort of thing really ought not to be permitted. The circumstances under which statements made to the investigating Police Officer may be proved at the subsequent trial are safeguarded, not merely by the provisions of the Indian Evidence Act, but also by certain specially important provisions of the Code of Criminal Procedure. Here we have the Sub-Inspector permitted to make statements, which have obviously prejudiced the mind of the Court against the accused, and which are frankly inadmissible under the Indian Evidence Act, apart altogether from the special provisions of the Code of Criminal Procedure. We must, therefore, conclude by coming back once more to the two witnesses Nanwa and Bhagwana. The story told by these two men is not on the face of it particularly convincing or particularly plausible. They are supposed to be corroborated by Musammat Bharto. She is a woman of loose character. We have not hitherto noted the fact; but the woman was admittedly pregnant at the time she gave evidence in Court. Her statement that the old man Ganga Baksh was the father of the child she was expecting to bear is certainly improbable. The defence have suggested that she was the mistress of Balwant Singh. This is not a very easy fact to establish by positive evidence, but it does seem that the defence has produced sufficient evidence to make the point at least a doubtful one. In one or two matters, particularly where she is contradicted by the chowkidar Ram Kalan, it seems to us that Musammat Bharto's evidence is demonstrably untrue We cannot regard her corroboration of the two eye-witnesses as worth anything. There is in this connection one other point which ought perhaps to be mentioned. The presence of some undigested food in the stomach of the deceased suggested to the Civil Surgeon that the man had not been killed after a longer interval than at most four hours since he had partaken of his last meal. We have consulted various medical authorities on 'the subject, as the learned Sessions Judge himself did, and the point is not one which could be pressed too far in the face of clear and reliable evidence to the contrary. It is, however, worth something against two such witnesses as Nanwa and Bhagwani, and what is also important is that it has affected the evidence given by Musammat Bharto, who seems undoubtedly to have modified her statement between her examination before the Magistrate and her deposition at the trial, in order to shorten as far as possible the interval between Ganga Baksh's partaking of his last meal on October the 14th and the presumed hour of his death on the following morning.
7. We have here a case in which the murdered man was a Jat. The accused belongs to the same clan and the two eye-witnesses on the strength of whose evidence it is sought to convict him of murder also belong to the same clan. There is direct evidence of an existing feud between the Jat land-holders of the village, and the two eye witnesses are tenants of one of the Jat land-holders who is opposed to the appellant. These circumstances in themselves make it necessary for the evidence of those two eyewitnesses to be received with caution and carefully scrutinised. We have endeavoured to examine and appraise that evidence to the best of our ability. We find it hopelessly unconvincing. The story as told is in itself improbable, and the improbability grows the more one endeavours to follow it out in its details. If we are to look upon the killing of Ganga Baksh as a murder planned beforehand, and his presence in his field on the morning in question as intentionally brought about in order the he might be murdered there, then the entire evidence of Nanwa becomes a mass of clothed nonsense. The murderers would have set upon their victim, and disposed of him as quickly as possible, without a word spoken. On the other hand, the theory of an unpremeditated quarrel and a prolonged altercation, ending in the manner described by the witnesses, is open to difficulties of its, own. Of the injuries found on the corpse two were such as might have been caused by lathi blows. Another was in all probability caused, although the learned Sessions Judge does not seem to have thought of this, by some one kneeling on the old man's chest. Four were punctured wounds caused by blows from some edged weapon, which is not forthcoming. It is idle to suggest that either the ploughshare or the agricultural implement found in the field caused the four injuries described in the Assistant Surgeon's evidence. Nanwa and Bhagwana profess to have bad a complete view of what took place, but saw no weapon in the hands either of Hansraj Singh or of Hoshiar Singh, except the lathi wielded by the latter We are unable to rely upon this evidence and we find that we share the scepticism of the Assessors rather than the conviction expressed by the learned Sessions Judge. We must, under the circumstances, decline to confirm the conviction of Hansraj Singh upon this evidence. We accept his appeal, set aside the conviction and sentence in this case and direct that he be released.
8. I entirely agree. The Judge himself described the case as a difficult one. It undoubtedly was. I think the Assessors put their fingers on one of the first difficulties, and it is impossible to read the judgment, which we have done two or three times between us, without feeling that the Judge was driven into somewhat far-fetched arguments to justify his conclusion. I will just illustrate that from his method of dealing with the question of the weapon. Nanwa spoke of one lathi Bhagwana never referred to- any weapon at all and was never asked as to what weapon was used. It is clear to demonstration that a lathi did not cause all the wounds which resulted in the death of this man, and neither the weapon itself nor its nature has been identified. Now the learned Judge in dealing with this point said this: If the murder was a plot by somebody else and the story of the eye-witnesses fabricated, the murderer would not have used an uncommon weapon. Bat nobody knows that it was an uncommon weapon. It is a pure assumption to say that it was an Uncommon weapon. The only' ground for saying' so is that it was not a weapon corresponding with the three alleged to be on the ground, the lathi, the ploughshare and the palkati. Having assumed that it was an uncommon weapon, he goes on to say that the persons who fabricated a story of this kind would necessarily account for the uncommon weapon which had been used. But the learned Judge wholly overlooks the fact that if it was an uncommon weapon and the fabricators had left it on the spot in order to account for it, they would have been providing the means of their own identification. And in my view if it was an uncommon weapon, its absence does not in the least militate against the theory which the learned Judge was destroying.
9. One other point is that the chowkidar's conduct has been judicially condemned and notice of the Superintendent of Police has been drawn to such condemnation by the Judge. It seems to me only just that the notice of the Superintendent should be drawn to the other view of the matter. The learned Judge says that the chowhidar's statement is entirely false. That is going too far because some of it is not, according to the findings of the learned Judge himself. The part of his, statement which the learned Judge condemns is where the chowkidar's says that when he got to Balwant's baithak seven people were there and that Balwant told Bharto, the chowkidar, and Thana to go and seethe dead body and make the report. The learned Judge has extracted from that a knowledge on the part of the chowkidar that Balwant knew that what he was telling them to report was untrue, and upon that he has based his condemnation of the chowkidar. All I can say is that taking what the chowkidar himself said and the learned Judge's comment upon it, I cannot find any ground for attributing that knowledge to the chowkidar. It may be that he knew; it may be that he did not know. All I can say is that it is too much to condemn his conduct upon this material, because the chowkidar says that when he arrived Nanwa and Bharto had already been there. The theory is that Nanwa and Bharto were concocting the report which was afterwards to he made at the thana. But upon the chowkidar's evidence, and that is all I am dealing with, that had already been done before the chowhidar's arrival. And when he was challenged by the Government Pleader, in cross-examination, he said that Nanwa, Bhagwana and Bharto said nothing in his presence. So that upon, his own statement all that appears is that the report had already been made up at Balwant's house, which having regard to the admitted friendliness between Balwant and Bharto is not surprising, and he the chowkidar on his arrival was told what had happened and asked to go and verify the fact of the murder with his own eyes and report the same to the Police Station. As I have already said, he may have been in the plot, but speaking for myself, I do not think his statement involves that conclusion necessarily. It is quite consistent with his belief in what, he was told.