1. This is an appeal from a judgment of the Sessions Judge of Indore acquitting the respondents Babulal Shukla and Lal Shukla of charges under Section 307, I. P. C. and Sections 19(e) and (f) and Section 20 of the Indian Arms Act and Babulal Tiwari of a charge under Section 307, I. P. C., read with Section 34, I. P. C. At the conclusion of the hearing of the appeal, we announced our decision of dismissing the appeal saying that the reasons for our decision would be given later on. Accordingly, we now proceed to give our reasons.
2. The general nature of the case alleged by the prosecution was that Babulal Shukla was on terms of enmity with one Bhagwati for the last eight or ten years; that on the evening of 22nd November 1955, between 8-30 and 8-45 p.m., when Bhagwati was at the shop of one Kanhaiyalal inflating the tyre of a cycle, the three accused persons and one Sahdev, who is said to be absconding, came in a car suddenly and stopped the car just behind Bhagwati; that Babulal shouted:
^^;g jgk Hkxorh] ekjks lkys dks]**
and immediately afterwards all the four occupants of the car got down and Lal Shukla fired a revolver shot at Bhagwati, which missed him passing close to his ear; and that Bhagwati then sat down and the accused Babulal Shukla took the revolver from Lal Shukla and fired two shots at Bhagwati, which also missed. According to the prosecution, one of the shots hit a cycle-handle. The accused then got into the car and went away towards Malharganj.
The first information report was lodged by Bhagwati in the Malharganj Police Station which is very close to the scene of occurrence. Bhagwati proceeded to the police station on cycle. The report was lodged at about 9 p.m. In the report, Bhagwati narrated the details of the incident making specific mention of the fact that one of the shots hit a cycle-handle and that Babulal Shukla fired at him on account of enmity.
Lal Shukla and Babulal Tiwari also went to the police station to lodge a report. The prosecution stated that report was not taken down as they came to the police station after the arrival of Bhagwati and after his report had been recorded. The accused, however, say that they reached the police station before Bhagwati and their report to the effect that while they were proceeding in a car, Bhagwati obstructed the car near Kanhaiyalal's shop and that when they managed to drive the car away despite the obstruction Bhagwati fired three revolver shots at them.
The police then took up investigation arid arrested Lal Shukla and Babulal Tiwari on the same night at about 1-30 a.m. The respondent Babulal Shukla was arrested in Bombay on 31st December 1955, at Victoria Terminus Railway Station, It was said that he absconded immediately after the occurrence. It was further alleged by the prosecution that on the afternoon of 7th December 1955, Kanhaiyalal noticed a glass-plate covering a picture in his shop broken and that he also found a hole in a wooden Balli (beam) just behind the picture.
He informed Sub-Inspectors Narendra Singh and Shivcharansingh Bhadoria who happened to be in the neighbourhood. These two Sub-Inspectors found on inspection that the hole in the Balli contained a bullet. The Sub-Inspectors cut the portion of the Balli containing the bullet and made a seizure-memo of the picture and the Balli.
According to the prosecution, on the 14th January 1956, Babulal Shukla gave information with regard to certain cartridges at the house of his maternal-uncle Surajbali; that the police then went with Babulal Shukla to Surajbali's house and there Surajbali, on being asked by the accused Babulal Shukla, produced four cartridges from a box as also a leather revolver case and a uniform said to belong to Sahdeo.
These articles were seized by the police. It is said that on further interrogation, Babulal Shukla gave information to the police on 15th January 1956, at about 12-30 a.m. about his having lodged a revolver with his maternal-uncle Surajbali; that acting on this information the police went to Surajbali's house taking Babulal Shukla with them and there Surajbali brought out a revolver hidden in a pit some fifty or sixty paces outside the compound of his house. This revolver was loaded and contained five cartridges.
3. The accused have denied having fired any shot at Bhagwati. The defence of Babulal Shukla was that he was going in a car along with Lal Shukla, Babulal Tiwari and Sahdev to fetch a doctor for his mother who was ill; that when he reached Kanhaiyalal's shop he found Bhagwati and some five or six other persons blocking the road; that when the car was not allowed to move further they had to stop the car, and then Bhagwati whipped out a pistol and fired at them and thereafter they proceeded in the car; and that later on he left Lal Shukla and Babulal Tiwari to lodge a report in the police station and he himself went to fetch a doctor for his mother. According to the accused persons they reached the police station before 'Bhagwati came there. The plea of Babulal Tiwari and Lal Shukla was also to the same effect.
4. At the trial, the prosecution tendered evidence of four kinds against the accused persons. It consisted of the statements of witnesses who deposed to having seen Babulal Shukla and Lal Shukla fire revolver shots; the evidence of a broken glass-plate covering a picture in Kanhaiyalal's shop and the finding of a bullet embedded in a Balli behind the picture; the recovery of cartridges on 14th January 1956, and of a revolver on 15th January 1956, on information said to have been given by Babulal Shukla and at his instance; and the evidence of witnesses who stated having previously seen Babulal Shukla carrying a revolver which was recovered on 15th January 1956.
The learned Sessions Judge found many features in the prosecution evidence giving rise to considerable suspicion. He held that the testimony of the eye-witnesses was untrustworthy because of serious discrepancies between the versions given by them and on the ground that the witnesses were friends or associates of Bhagwati; were of bad character, and were involved in criminal cases.
The learned Sessions Judge found that the evidence of the eye-witnesses regarding the firing of the revolver by Babulal Shukla and Lal Shukla on 22nd November 1955, was not worthy of any credence and that the story of the firing of the shots was a concocted one; that the recovery of a bullet from Kanhaiyalal's shop on 7th December 1955, was 'a fabricated piece of evidence'; that the recoveries of cartridges, revolver-case and revolver on 14th and 15th January 1956, were not established as at the instance of the accused Babulal Shukla; and that the evidence produced by the prosecution in regard to the previous possession by Babulal Shukla of a revolver was totally unreliable.
He also held that there was no evidence to show that the bullet recovered from Kanhaiyalal's shop could be fired by the revolver recovered on 15th January 1956, and that the prosecution had failed to prove that the accused persons came to Kanhaiyalal's shop with the common intention of causing Bhagwati's death. On these findings, the learned Sessions Judge acquitted the respondents of the offences with which they had been charged.
5. Mr. Sharma, learned Government Advocate, took us through the comments of the learned Sessions Judge on the evidence on record and the relevant portions of the evidence and submitted that the learned Judge's appreciation of evidence was altogether erroneous; that the testimony of the eye-witnesses was rejected on inadequate grounds and on mere suspicion, speculation and doubts; that there could be no room for holding that no shots had been fired at all and that all that took place was a mere altercation between Bhagwati and the accused persons when the accused themselves made a report to the police that three shots had been fired albeit by Bhagwati cross-examined the prosecution witnesses in the committing Magistrate's Court with a view to establish the varied plea that Sahdev and not they fired the shots, and when even in the trial it was admitted by the accused persons that one shot had been fired; and that the failure of the accused to substantiate the defence only gave support to the prosecution story. Learned Government Advocate vehemently argued that the learned Judge's conclusion that the evidence of a picture with a broken glass-plate and of the recovery of a bullet from a 'Balli' behind the picture was a fabricated piece of evidence was based on a misappreciation of facts and on conjectures and that the evidence on record amply established the fact that the cartridges and the revolver were recovered at the instance of the accused Babulal and that he was in possession of the revolver at the time of the incident. A good part of the argument of the learned Government Advocate was devoted to showing that the trial Judge's observation that the police investigation and the conduct of the prosecution before him was not pure and fair was not justified.
6. This being an appeal under Section 417, Cr. P. C., the principles on which a High Court, should act in an appeal from an order of acquittal must he borne in mind. The principles have been laid down by the Privy Council in the case of Sheo Swarup v. King Emperor, AIR 1934 PC 227(2) (A), and have been reiterated by the Supreme Court in numerous decisions.
It is sufficient to refer to the decisions of the Supreme Court in Surajpalsingh v. State, AIR 1952 SC 52 (B); Puran v. State of Punjab, AIR 1953 SC 459 (C); Narayan v. State of Travancore-Cochin, AIR 1953 SC 478 (D); Bansidhar v. State of Orissa, (S) AIR 1955 SC 585 (E); and Aher Raja Khima v. State of Saurashtra, (S) AIR 1956 SC 217 (F).
The principles are that while in an appeal under Section 417, Cr. P. C., the High Court has full power to review the evidence upon which the order of acquittal was founded, nevertheless, in exercising the power conferred by the Code the High Court should give proper weight and consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses, (ii) the presumption of innocence in favour of the accused reinforced by the fact of his acquittal at the trial, (iii) the right of the accused to the benefit of any doubt, and (iv)the slowness of the appellate Court in disturbing a linding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
As observed by the Supreme Court in (S) AIR 1956 SC 217 (F), in an appeal by a State Government under Section 417, Cr. P. C. against the acquittal of the accused, it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong, and if the trial Court takes a reasonable view of the facts of the case, interference under Section 417, Cr. P. C., is not justifiable unless there are really strong reasons for reversing that view.
Scrutinising the evidence on record and the conclusion arrived at by the learned Sessions Judge with these principles in mind we see no reason for differing from the conclusion came to by the learned Sessions Judge or from the view he has taken of the evidence on record and the credibility of the witnesses.
The judgment of the learned Judge is based on proper materials and even if he has at some places in his judgment referred to material which he should not have taken into consideration, that does not, in our opinion, vitiate the conclusion at which he arrived. Nor is the conclusion imperilled by the learned Sessions Judge's inaccuracy in expression at some places in his judgment.
7. It is not necessary to discuss the evidence on record at length or to go into all the details the learned trial Judge has dealt with in his judgment. It will suffice if we refer to certain bold features of the evidence which have persuaded us to reach the conclusion of upholding the decision of the learned Sessions Judge as a result of careful consideration of the full arguments which were addressed to us.
The material evidence in the case is that of persons who deposed to having seen Lal Shukla and Babulal Shukla fire. The evidence of the recovery of cartridges and revolver, even if accepted, is by itself insufficient and inconclusive to convict the respondents of any offence, if the evidence of the eye-witnesses and of the previous possession of the revolver by Babulal Shukla is rejected.
The witnesses who said that they saw Babulal Shukla and Lal Shukla fire are, besides Bhagwati, P. W. 21 Ramdulare, P. W. 22 Ramlakhan and P. W. 26 Nanuram. All of them uniformly said that the three accused persons and one other person came in a car to Kanhaiyalal's shop where Bhagwati was standing; that Babulal Shukla shouted:
^^;g jgk Hkxorh] ekjks lkys dks]**
Apart from the fact that there is certainlya suspicious uniformity in matters of detail in the evidence of those witnesses, the first point that we notice about this evidence is that though the occurrence happened at a busy hour and in a busy locality, the prosecution could not tender in evidence any independent respectable person of the locality.
Instead, they produced Rarnlakhan, Ramdulare and Rustam who are friends of Bhagwati, and Dayashankar and Nanuram, who were so placed as not to be above the police control. The prosecution also made no attempt to explain as to how they came to know of the presence of Ramdulare, Nanuram and Dayashankar at the scene of occurrence when they had not been named by Bhagwati as witnesses in the first information report.
There is P.W. 21 Ramdulare, a milk-vendor, who said that at the time of the occurrence he was at the pan shop of P.W. 22 Rarnlakhan, situated at a distance of 18 to 20 paces opposite to Kanhaiyalal's shop. His evidence unmistakably shows that he is an associate of Bhagwati. P.W. 22 Rarnlakhan is also a friend of Bhagwati, though he avoided admitting this. When questioned whether Bhagwati or Ramdulare looked after his shop when he was away for some months from Indore, he stated that he did not and added that he had entrusted the shop to someone from Depalpur whose name, strangely enough, he did not remember.
Learned Government Advocate candidly did not attach any value to the statement of Rustarn, who had stated that he was at the material time at Ramlakhan's shop and witnessed the occurrence therefrom and was so disinterested in the event that after taking a pan and seeing the incident he walked away from the shop. Then there is P.W. 24 Dayashankar, who is employed in Railway Protection Force and who gave the evidence that while he was going to his friend Mulchand on a condolence visit he happened to pass by Kanhaiyalal's shop and witnessed the occurrence; and that thereafter he went to Mulchand's house and not finding him there returned to his house and did not tell his father or anyone else about the incident.
This witness did not know anyone. Yet, according to him, at about 10-15 p.m. on the night of the occurrence a policeman came to him and took him to the place of occurrence for being questioned by the Subedar as to whether he had seen the occurrence and whether Lal Shukla had fired a shot. The witness is a matriculate and employed in the Railway Protection Force.
It is therefore reasonable to think that if he had really seen the occurrence he would have himself come forward as a witness and not gone away maintaining a complete silence on what he had seen. P.W. 26 Nanuram, who did the business of selling as a pedlar borrowed cloth with no capital of his own, is a friend of Ramdulare. He stated that he was at Ramlakhan's pan shop at the time of the incident. He admitted that the car stood between him and the person firing the revolver. But curiously enough, despite this obstruction he was abie to get a clear view of all that transpired.
In regard to Bhagwati's own statement, it has to be treated with caution. He and Babulal Sliukla were obviously not on good terms. His statement that one of the shots aimed at him when he was sitting down struck a cycle standing in front of Kanhaiyalal's shop causing a mark on the handle of the cycle is not corroborated by other witnesses or by the location of the mark and the dent found on the handles of the cycle produced in the case. The cycle which was produced had a mark and a dent on the lower surface of the handles.
Such a mark and the dent, as stated by Major Sonaone, who gave evidence on behalf of the prosecution as a ballistic expert, could have been caused only in a lying down position and not by a bullet coming from the front as deposed to by Bhagwati. This statement of Bhagwati is plainly untrue and casts considerable doubt on his general veracity. Learned Government Advocate argued that the cycle was never produced as an evidence in the case. We are unable to accept this argument.
From the evidence of Bhagwati and P.W. 1 Tabedarkhan, the investigating officer, it is clear to us that the cycle was produced in the case as an evidence to show that one of the shots fired by the accused persons hit the handles of the cycle. Bhagwati made a specific mention of this fact in the first information report and also repeated the fact in his evidence. The cycle was not sent to the ballistic expert till the filing of the challan.
Tabedarkhan sought to explain this omission by saying that he forgot to do so and not by saying that he thought it unnecessary because the prosecution did not intend to produce the cycle as evidence in the case. There can, therefore, be no doubt that the cycle was produced in the case as a piece of evidence to show that one of the shots fired hit the handle of the cycle. In these circumstances it is difficult to maintain that the observation of the learned Sessions Judge that the statement of Bhagwati that one of the shots hit the cycle-handle was fabricated, was without foundation.
8. It is important to note that barring the bullet which was found, on 7th December 1955, embedded in a Balli and to which reference would be made presently, the police were not able to find any bullet on the scene of occurrence on 22nd November 1955, or on any subsequent day. If what the witnesses Bhagwati, Ramdulare, Ramlakhan, Dayashankar and Nanuram stated was true and if, as they deposed, the revolver was fired from a close distance at Bhagwati when he was at a distance of about 10 feet from the wall of Kanhaiyalal's shop and when one of the shots passed by his ear and the other two shots were fired at him when he was sitting down by a firer in a standing position, then the bullets ought to have been found.
P.W. 1 Tabedarkhan, the investigating officer, stated that on the day of occurrence he searched very carefully the walls of Kanhaiyalal's shop as also the ground in front of hishouse, but did not find any bullets and that if he had struck the plinth or the wall of Kanhaiyalal's shop or any spot close by, the bullets ought to have been recovered as the place itself was such that they could not have been lost.
To the same effect is the statement of Major Sonaone who saw the place of occurrence and gave the opinion that judging by the direction of firing and the position of Bhagwati at that time, the bullets should have been found somewhere near the scene of occurrence and that they could not just disappear in the air. The fact that the bullets were not found only makes it doubtful whether if the revolver had been fired, the firing was in the circumstances and in the direction deposed to by the prosecution witnesses.
Learned Government Advocate suggested that the bullets might have disappeared somewhere on account of the jerking or jumping of the revolver at the actual moment it was fired and the bullets taking a direction different from that intended or that they might have been embedded and lost in the soft ground in front of Kanhaiyalal's shop. We do not agree.
It is not normal for a revolver to jump or jerk when it is fired by a person with some experience and with a steady hand. There is nothing to show that the revolver recovered in the case was such that there was all likelihood of its jerking or jumping when it was fired by Babulal Shukla or Lal Shukla. Again, the suggestion that the revolver might have jumped is utterly inconsistent with the prosecution story that one of the bullets which passed close to Bhagwati's ear hit a picture and that the other one hit a cycle-handle.
There is also no evidence to indicate that the ground in front of Kanhaiyalal's shop was so soft that it was very easy for a bullet to get embedded deep into the ground and that it was, therefore, difficult and impossible to disenter it from the ground. On the other hand, the evidence is that the road in front of Kanhaiyalal's shop was a metalled road and that the ground very close to his shop was a hard one.
9. Coming now to the production in evidence of a picture with a broken glass as an article which was hit by one of the shots fired by the respondents and found embedded in a Balli, we have formed the same opinion as the learned Sessions Judge did of that evidence being false and manufactured. At the time of the incident the picture was just above a door in a wall some ten feet behind The spot where Bhagwati was. It was decorated by a paper garland.
It is said that one of the shots fired by the accused persons struck the glass plate covering the picture causing a hole therein and at a corresponding place in the picture and the bullet then pierced the wooden beam behind the picture. According to the prosecution, the damage done to the picture was first noticed OH 7th December 1955, by Kanhaiyalal when he was cleaning the picture. While cleaning he found a hole in the glass and the hole was covered by the tassels of a paper garland, which contrary to the usual mode of putting the garland were on the top.
He accordingly informed the police, of what he had seen and after the arrival of the police, the bullet was removed from the beam. Now, it is in evidence that immediately after the occurrence Tabedarkhan and several other police officers including a Deputy Superintendent of Police closely inspected the scene of occurrence and the wall where the picture was hung. But none of them round any bullet or any mark of the striking of any bullet. Tabedarkhan, the investigating officer, is very emphatic on the point. He said:--
^^eSaus eksdk odqok rkjh[k dks ns[kk tcdUg;kyky ds nqdku dh fnokys ns[kh FkhaA eSaus /;kuiwoZd fnokys ns[khA ykbZV esaeSaus ns[kk fd ogh xksyhoksyh dk fu'kku rks utj ugha vkrk gSA fpt gVkdj ughans[kk] rlchj mldh nqdkuesa Vaxh gwbZ eSaus ns[kh FkhA lkeus yxh Fkh blfy;sns[khA ogka ij chtyh dh jks'kuh Fkh mlesa eSaus rlchj ns[kh FkhA rlchj ds 'kDyesa eq>s dksbZ ,slh ckr utj ugha vkbZA mlij gkj iM+k gqvk FkkA tks dkxt dkFkkA og lkQ dkxt dk gksuk nh[krk FkkA esjk brehuku gks x;k Fkk fd og gkj dkxt dkFkkA eSaus rlchj dh rjQ blfy;s ns[kk Fkk fd m/kj dgha xksyh rks ugha yxhA
Tabedarkhan thus did not find any crack, hole or anything odd in the picture when he inspected it if then on 22nd November 1955, Tabedarkhan and other police officers did not find any hole and even cracks in the glass which Kanhaiyalal, the Sub-Inspectors Bhadora and Narendrasingh and the witnesses P.W. 9 Shankarlal and P. W. 19 Nathu saw on 7th December 1955, it is impossible to hold that the damage to the picture was caused on 22nd November 1955, itself by the striking of a bullet.
It is beyond our comprehension as to how the bullet which according to the prosecution pierced the glass-plate of the picture and got embedded in the beam behind it did not, when it struck the glass, make any sound and reduce the glass to splinters or at least break it into pieces. It is also strange that no one heard the sound of the striking of the bullet. It is not the suggestion of the police that the glass-plate covering the picture was of a special kind in which a bullet could be fired noiselessly causing only a hole and no other damage.
In his evidence, Major Sonaone said that the striking of the bullet on the glass-plate covering the picture would create considerable sound and that if the hole in the picture was covered by any garland it should also have been damaged and disturbed. But the garland was found without any damage and no one heard the sound of the striking of the bullet and no one saw any glass pieces falling on to the ground.
It is worthy of note that the glass-plate containing the hole was not sent to Major Sonaone for examination. It was not produced in thecase. There is no mention of a broken glass containing a hole in the seizure memo. It refers only to the glass as one broken at the top. The production of the piece of glass containing a hole would have indicated whether any pieces of broken glass would or would not have fallen on the ground after the striking of the bullet.
It must be mentioned here that one Doulat was standing very near the picture at the time of the incident. It is highly improbable that this Doulat would not have heard the sound of the striking of a bullet or seen any glass pieces falling on the ground, if a bullet had stuck the glass. Doulat was first cited as a prosecution witness.
But after examining some witnesses, Tabedarkhan, the investigating officer, filed an affidavit stating that Doulat was of low intelligence, immature understanding and was not able to understand the sanctity and nature of the oath and thus the prosecution gave up the witness. The learned Sessions Judge, however, examined him under Section 540, Cr. P. C., and found him of an understanding and shrewdness sufficient enough to avoid answering awkward questions about the striking of a bullet on the glass and its consequences.
Learned Government Advocate contended that Kanhaiyalai's shop being an open place it was impossible to implant a bullet in the beem behind the picture or fire a shot at the picture. As to this it is sufficient to say that the possibility of an expert hand firing a shot at the picture in the quiet hours for the purpose of creating evidence cannot be ruled out in this case. Such being the circumstances in which the picture was found and the bullet was recovered from a beam on 7th December, 1955, we are driven to the conclusion that this evidence of one of the shots hitting the picture and a bullet getting embedded in the beam behind it is a fabrication from start to finish.
The Police are too often tempted to introduce padding in a case in their over zealousness to establish a charge, which they believe to be true in support of which the evidence in their possession is weak. But this practice has to be condemned in no uncertain terms. That such flagrant fabrication could take place in this case reveals a state of affairs which cannot be tolerated. The matter is one which cannot be dismissed with a wry smile.
The responsibility for it must be fixed and those responsible for it must be adequately punished. It would be useful to repeat the warning which Young C. J. gave in the case of Ashiq Mahomed v. Emperor, AIR 1936 Lah 330 (G), to those who may be tempted to interfere with the course of justice by the procuring of false evidence or the fabrication of the evidence of recoveries.
He stated that
'the duty of everyone, police officer or constables, Government officials and plain citizens, is to allow a case to come before the Court as it is without fabrication or padding. It is for the Courts to decide whether an accused person is innocent or guilty and not for the prosecution to determine his guilt in advance and attempt to deceive the Court into giving a verdict based on false evidence. Anyone procuring false evidence runs the risk of imprisonment and degradation from office, and what is still more serious, may have the burden on his shoulder of sending an innocent man to the gallows,'
10. The fact that the prosecution produced false evidence for the purpose of procuring a conviction must affect the mind of the Court as to the rest of the evidence and the effect is all the more when the witnesses produced by the prosecution are easily amenable to Police influence.
It was because of this fact and of other unsavoury features in the Police investigation noticed by the learned Sessions Judge in his judgment and because of the inherent weaknesses in the statements of Bhagwati, Ram-dulare, Ramlakhan, Dayashankar, Nanuram and Rustam, that the learned Judge took the view that their evidence could not be expected to command any confidence. In taking this view, he was clearly right.
11. It would be convenient here to deal with the contention of the learned Government Advocate that the accused persons admitted their coming to the scene of occurrence in a car, as also the fact that revolver shots were fired after their arrival, and that their version that Bhagwati or Sahdev fired the shots was not substantiated by any evidence, and that, therefore, it followed that the statements of Bhagwati and of other eye-witnesses that the shots were fired by the respondents at Bhagwati were true. The argument is untenable and cannot be acceded to.
What the prosecution had to prove in this case was not only that shots were fired but also that they were fired by the accused persons with the intention or knowledge requisite under Section 307, I. P. C. The admission of the accused that shots were fired cannot be taken to be an admission on their part that they fired the shots. Nor can it be coupled with the prosecution evidence to see whether the prosecution has discharged the onus of establishing beyond all reasonable doubt the case put forward by them.
The cardinal rule of the administration of criminal justice is that the prosecution must prove the guilt of the accused, and that the accused need not prove anything. He is entitled to stand on the innocence which the, law imputes to him till it is displaced, The burden resting on the prosecution never shifts. Even if the defence of the accused is palpably false, the prosecution must establish beyond all reasonable doubt that no other alternative than the truth of the prosecution story will explain the facts.
It is true that the Court is required to come to a decision on the whole of the evidence that has been laid before it and on the plea of the accused. When the prosecution hasmade out a case against the accused, the plea and deience of the accused may have one of the three results, namely, it may convince the Court of the innocence of the accused, or it may cause the Court to doubt in which case the accused would be entitled to acquittal, or it may, and sometime does, strengthen the case for the prosecution.
But this does not mean that where, as here, the prosecution evidence is found to be false and riddled with defect and the prosecution has not of itself discharged the burden, the Court can look to the plea of the accused and his evidence to see whether there are materials available to bolster up the case for the prosecution or to add weight and reliability to the prosecution witnesses where none exists.
12. We are clear in our mind that the plea of the accused in this case and the fact that they did not produce any evidence to support it and their admission that shots were fired can be of no assistance whatever to the prosecution in establishing the case they put forward.
13. There remains for consideration the value and effect of the evidence of recoveries of cartridges, a revolver-case and a uniform on 14th January, 1956, and of a revolver on 15th January, 1956. It was said that during the few hours on 14th January, 1956, that Sub-Inspector Bhadoria was in charge of investigation on account of Tabedarkhan's being preoccupied elsewhere, the accused Babulal Shukla gave information to Bhadoria at about 2-15 P. M. on 14th January, 1956, regarding cartridges and a revolver-case; that thereupon Bhadoria without making a record of the information given by Babulal Shukla, took him in the evening to Surajbali's house and from there in the presence of P. W. 7 Mangu and another Panch Babusingh, Babulal Shukla asked Surajbali to bring the cartridges he had given to him; and that accordingly Surajbali brought out the cartridges and a revolver-case.
The Police then searched Surajbali's house and found a military uniform. These articles were handed over by Bhadoria to Tabedarkhan at night at about 9 P. M. Tabedarkhan then questioned Babulal Shukla and as a result of this Babulal Shukla disclosed information about his having given a revolver to Surajbali. Tabedarkhan made a memo of this information and then took the accused Babulal Shukla and the witnesses P. W. 16 Kamruddin and P. W. 17 Ramniranjan to Surajbali's house at about 2 A. M. in the night.
At Surajbali's house, Babulal Shukla told him to hand over the revolver which he had given and thereafter Surajbali took the Police to a pit outside his compound and therefrom brought out a revolver wrapped in an underwear. The pit was covered with loose grass on the top. The accused Babu Shukla, while not denying the fact that these things were recovered from Surajbali's house, stated that he did not give information to the Police about them; on the other hand, the Police took him to Surajbali's house for a search of the house and themselves recovered cartridges and a revolver-case and that on the night of 14th January, 1956, they took him to a pit outside Surajbali's house and from there themselves recovered a revolver.
The learned Sessions Judge found that the cartridges the revolver-case and the revolver were recovered by the Police during the course of a search and not on the information given by the accused Babulal Shukla or at his instance. He found it difficult to believe that the accused Babulal Shukla, who for several days after 2nd January, 1956, gave no information to the Police and who was taken by the Police with them in their abortive searches at Dewas and Lasudia, gave two instalments.
The learned Sessions Judge was not impressed by the Panch witnesses Mangu, Kamruddin and Ramniranjan. He found them casual, not independent and persons who could not give any satisfactory explanation as to the circumstances in which they were taken by the Police to witness the discoveries. In our judgment, the grounds on which the learned Sessions Judge based his conclusion that the cartridges and the revolver were recovered by the Police during the course of a search cannot be said to be inadequate.
It is indeed strange that the accused Babulal Shukla who was unhelpful to the Police fornearly twelve days before 14th January, 1956,suddenly thought of disclosing to the Police thewhereabouts of cartridges and the revolver.Learned Government Advocate was not able topoint out to us any factor indicating the likelihood of the accused Babulal Shukla giving thisinformation on 14th January, 1956, when hegave no information for nearly twelve daysbefore that. He no doubt said that BabulalShukla deliberately withheld informationabout the revolver while giving informationabout the cartridges because he apprehendedthat, were he to give information of the revolver, he would be implicated, and that afterthe recovery of the revolver-case he had noother alternative but to give information aboutthe revolver also.
The suggestion overlooks the fact that if Babulal Shukla did give information about the cartridges, then the apprehension and the compulsion that the learned Government Advocate suggested would have been present even at the time when Babulal Shukla gave information about the cartridges. If Babulal Shukla did give information about the cartridges, it was but logical to infer that he had also information about the revolver.
It is significant that during the course of investigation the Police searched the houses of all the friends and associates of Babulal Shukla and of persons with whom he was in contact; they also knew that Surajbali was the maternal-uncle of Babulal Shukla and that Babulal Shukla was a history-sheeter. But the Police did not until 14th January, 1956, visit the house of Surajbali or take a search of his house. It was only on 14th of January. 1956, that they went to the house of Surajbali taking Babulal Shukla with them, and the cartridges, the revolver and the revolver-case were thus recovered from the house of Surajbali, whose search the Police had omitted to take.
Again, the revolver was found in an open place outside the compound of Surajbali's house in a pit which was so covered with earth and grass as to make it obvious to any one that something had been hidden in the pit. Regard being had to all these circumstances, we think the learned Sessions Judge was right in rejecting the prosecution story that the revolver and the cartridges were recovered on information given by the accused Babulal Shukla and at his instance.
It must be noted that the cartridges which were recovered from Surajbali's house could not be used in the revolver that was found in the pit and the bullet which was recovered on 7th December, 1955, was so deshaped and distorted that Major Sonaone could not give any opinion as to whether it could have been fired from the revolver recovered on 15th January, 1956.
The recovery of a military uniform from the house of Surajbali proves nothing. There is no evidence to show that any of the accused persons or Sahdev was wearing this uniform at the time of the incident. If the uniform belongs to Sahdev, it would at the most show that Sahdev visited Surajbali at some time and not prove the fact that he visited Surajbali soon after the occurrence.
14. The evidence as to the previous possession of the revolver by Babulal Shukla was given by the witnesses P. W. 11 Ramnarayan, P. W. 12 Phulchand, P. W. 13 Ramzankhan and P. W. 14 Kika. All of them stated that some seven or eight years back they had seen Babu Shukla carrying a revolver which had a nickel-bright barrel somewhat similar to the barrel of the revolver produced in the Court.
Some of these witnesses were not on good terms with Babulal Shukla. The learned Sessions Judge was right in refusing to hold on the basis of vague statements of these unreliable witnesses that Babulal Shukla was in possession of the revolver which was recovered from a pit on 15-1-1956. We consider that it is beyond the bounds of possibility for any person to identify a revolver which he had seen with some person seven or eight years back by the mere brightness of its barrel.
15. This is a case in which the result depended upon an appreciation of the evidence. On a review of the evidence that is on record, we are not disposed to think that the learned trial Judge took an unreasonable view of the facts of the case. We would not, therefore, be justified in interfering with the learned Sessions Judge's decision of acquittal. The appeal is, therefore, dismissed.
16. I agree.