1. In this case Harku and Sheoraj, two young men, Kahars by caste, and distantly related, have been convicted; the first on a charge under Section 302, and the second on a charge under Section 302 109 of the Indian Penal Code, in connection with the murder of a boy named Brij Kishor. The record is before us for confirmation of the capital sentence passed by the Sessions Court. Both the convicts have submitted petitions of appeal through the Superintendent of the Jail in which they are confined, and the case on their behalf has been fully argued before as by Counsel. The record is a somewhat voluminous one, but the whole of the evidence is carefully summarised in the judgment of the learned Sessions Judge, and we do not propose to recapitulate more of it than is necessary in order to make clear the reasons for the decision we have come to.
2. The question of motive bulks somewhat largely in the evidence, but may be briefly disposed of so far as these appellants are concerned. There i no doubt that's the right of succession to a considerable property turned on the question whether or not this boy Brij Kishor was the posthumous son of one Sismol Prasad, who died in the month of August 1912, and his second wife Musammat Ram Jota.
3. The argument addressed to us on behalf of the appellants has consisted largely of a general attack on the prosecution evidence in all its details. We have been asked, in effect, to disbelieve practically every statement made by any of the prosecution witness and to ascribe the statements of Harku and Sheoraj, recorded by the Magistrate on June 4th, as due to threats and ill usage. In connection with these statements our attention has been specially drawn to certain evidence which shows that when they were handed over to the Police both Harku and Sheoraj bore on their persons slight but definite marks of ill usage. Babban Singh when pressed on this point, admitted that they had been beaten on their way to the Police Station but said that this was done because they sat down on the ground and obstinately refused to move. It is probable enough that the precise truth has not been told on this point and that both the accused underwent a certain amount of rough usage at the hands of Babban Singh and the indignant neighbours of Musammat Ram Jota. There is nothing particularly surprising in this, and there is no reason whatever to associate the consequences of this ill usage with the statements made by the two accused before the Magistrate on June 4th. The accused themselves have never done so. They have either denied making those statements altogether, or have ascribed them to threats and ill 'usage on the part of the investigating Sub-Inspector. One other matter of detail we think it advisable to notice in this connection. The learned Sessions Judge complains that, when Sub-Inspector Ata ullah Khan was in the witness box, he was unable to remember the precise nature of the injuries on the persons of the two accused when they were brought before him and, on being asked to refresh his memory by consulting any memorandum on the point which he might have made at the time in his own diary of the investigation, refused to do so. A difficulty of this sort between the Court and an investigating Police Officer seems to crop up from time to time, chiefly in records which come to us from the Gorakhpur Judgeship. As a matter of fact, the diary of the Police investigation is in the hands of the Judge at Sessions trial and entirely at his disposal, so long as he deals with it within the limits laid down by the law. In practice, one would not have thought that any Sessions Judge would have experienced any particular difficulty in getting over a failure of memory of this nature on the part of a Police witness if only by reading aloud to him the relevant extract from the diary and asking him what he had to say about it. As, however, the Sessions Judge in this case has appealed to us to pronounce an opinion on the supposed question of law involved, we, feel no hesitation in saying that a witness before a Court of Justice is under an obligation to tell the truth and the whole truth, to the very best of his power. If upon any question be suffers from a bona fide lapse of memory, and that failure of memory can be remedied by reference to any memorandum or other writing prepared by the witness at the time, and the Court invites the witness to refresh his memory with reference to the writing, the witness is, in our opinion, under an obvious obligation to do so. It is part of the duty under which he lies to lay the whole truth before the Court to the best of his ability. We trust we may not have any further occasion to notice this point.