1. The appellant in this case is a chamar named Chhidda whose age is given as thirty years He has been convicted in the Court of the Sessions Judge of Bulandshahr on a charge of having murdered Ram Prasad on the night of the 7th-8th December 1921.
2. Several other accused were put on their trial in the Sessions Court along with the appellant Chhidda. These, however, were acquitted.
3. The deceased man, Ram Prasad, lived in the same village as the accused, namely the village of Dhakar, which appears to be a place of considerably size situated close to the town of Khurja.
4. Ram Prasad was a Brahman and a number of witnesses in the case describe him as having been a man likely to give trouble in the village. They speak of him as having been sarkash (aggressive).
5. Briefly put, the story for the prosecution is that late in the evening of the 7th of December 1921 Ram Parsad left the village with the accused Chhidda. It is stated by Ram Prasad's mother that Chhidda took Ram Prasad away on the pretext of cutting some Babul trees near the Canal Distributary.
6. Ram Prasad was never seen alive again. Early the next morning his dead body was found on the Railway line which runs at some little distance from the village. The body had been laid across the rails and had been out right in two by a passing train.
7. There is no evidence on the record to show who was the first person who made this discovery. We find, however, by a reference to the papers in the case that the body was discovered by a pointsman, named Balmakund, who has not been called as a witness. The discovery was made in the very early hours of the morning and the Station Master apparently made a report to his superior officer, saying that a man had been run over.
8. The mother of the deceased man is a woman named Musammat Chandania, and from her evidence it appears that when her son failed to return on the night of the 7th of December last, the became alarmed. She went to the house of the headman, Debi Singh, who instructed her to go and ask the accused Chhidda what had happened to Ram Prasad. Her story is that she went to Chhidda at about midnight and that the latter told her that he had parted company with her son and that he must be sleeping out somewhere.
9. Musammat Chandania then went to Khurja where she communicated the news to another son of hers named Chimman, who made a report at the Khurja Police station at 8-30 in the morning. In this report it was stated that Chhidda had taken away Ram Prasad the night before and that Ram Prasad: had not yet returned.
10. Meanwhile, the name of four persons were mentioned, it being alleged that they had murdered Ram Prasad.
11. The Police took up the inquiry but after some investigation had been made, the Sub-Inspector came to the conclusion that the matter was one for the Railway Police. The papers were accordingly sent to the Railway Police. A Sub Inspector of that branch of the Police made some inquiry and then returned the papers to the Civil Police.
12. Eventually, it appears that the Police sent up a report to the Magistrate, saying that there was no case, and Chhidda was discharge 1.
13. In the beginning of January a complaint was made in Court by Ram Prasad's widow and an inquiry was again opened which led to the commitment of Chhidda and others to the Sessions Court, as has already been mentioned.
14. A great deal of the evidence which was produced at the trial in the Stations Court has been rejected by the learned Judge, and we think rightly. There can, WE think, be no doubt that, from the time the death of Run Prasad was discovered no to this: time when the case was tried out in Court, a lot of evidence bad been probably manufactured for the purpose of bringing the murder home to the accused.
15. In substance, all that has remained of the case in the Court below is that the Judge has believed that on the night of the 7th December the deceased man, Ram Prasad, left the village in company with the accused Chhidda.
16. As to this we think there can be no reasonable doubt, for there is on the record the evidence of a number of witnesses, who were sitting at a chaupal in the village at about 8 o'clock on the night of the 7th December, and these people including the headman all say that the accused Chhidda came up to the chaupal and said that he had business with Ram Prasad and went away, with Ram Prasad.
17. Nor do we think there is any reasonable doubt regarding the truth of that part of the prosecution story deposed to by Musammat Chandania, namely, that the accused name to the house with Ram Prasad and then went away with him. Masammat Chandania's statement is that Ram Prasad had his meal before he left in company with the accused. Apart from her statement We have the fact that the post mortem examination revealed that the stomach of the deceased man contained half digested food, a fact which leads us to believe that Ram Prasad came by his death some two or three hours after he had left his home.
18. Beyond this evidence there is really nothing more upon which reliance can be placed except the statement made by Musammat Chandania that at about midnight of 7th December she went, to make an inquiry from Chhidda regarding what had happened to her son. This fact is admitted by Chhidda himself. The evidence of Matru and Kunni stands largely discredited.
19. As regards the cause of death we think there can be no doubt that Ram Prasad was murdered before his dead body was laid on the Railway line. The medical evidence on this part of the case is quite convincing and goes to show that the deceased man had been probably killed by spear wounds, it is shown that there were punctured wounds in the region of the ribs and that the right lung had been pierced in two places. There was also evidence to show that several ribs had been broken, and reading the medical evidence as a whole, there can be little doubt that these injuries must have been inflicted before death. We may mention that the body, when it was discovered, had been cut in two by the passing of the train.
20. We do not deem it necessary to refer to those portions of the evidence which the learned Judge has rejected, showing that the accused and others had been seen in the neighbourhood of the Railway carrying a heavy body on a charpoy; all this has already been disposed of by the learned Judge of the Court below.
21. The question is therefore, whether, given the facts as we have stated them the court below was justified in holding that Ram Prasad was murdered by the accused Chhidda and others.
22. On his findings the learned Judge was satisfied that no other source was open to him than to convict In other words, he found that it was proved that because Ram Prasad and Chhidda had been seen together at about 8 o'clock in the evening and because the dead body of Ram Prasad had been discovered the next morning and further, that no explanation had been given by Chhidda regarding the death of Ram Prasad, therefore, Chhidda must be deemed to have taken a part in the murder. We are not able to accept this conclusion. In the absence of other evidence, circumstantial or direct, tending to show that the accused was concerned in this crime, we think that he is entitled to an acquittal. We have little doubt from what the witnesses have stated in this case that Ram Prasad was a person who was by no means popular in the village and we have further little doubt that he must have been murdered by some of his enemies on the night in question. But we are not prepared to draw the conclusion that, because the accused Chhidda was last seen in the company of Ram Prasad at about 8 o'clock at night, Chhidda must necessarily be considered to be on a of the persons responsible for Ram Prasad's murder. We must, therefore, allow the appeal, sat aside the conviction and sentence and we do so accordingly. We direct that the accused Chhidda be acquitted and released.