Kuppuswami Ayyar, J.
1. The petitioners are accused 1 to 7 and 9 in Preliminary Register Case No. 7 of 1944, on the file of the Stationary Second Class Magistrate of Kallakurichi. They, along with three others, were charged with having committed dacoity of ground-nuts, transported in bandies and belonging to P.W. 14. The preliminary enquiry was held by the Magistrate, who, after sifting the evidence, found that it it was not reliable and discharged the accused. The matter was taken in revision to the Court of the learned Sessions Judge of South Arcot. He agreed with the Magistrate with regard to two of the accused and, with regard to these petitioners he thought that they ought not to have been discharged and that the matter should' not have been decided by the Committing Magistrate, but should have been left to a jury, with whose assistance the Sessions Judge will be trying the case, if it had been committed to the Sessions., It is to revise that order that this petition has been filed.
2. It is not disputed before me that a Magistrate, who holds the preliminary enquiry, could sift the evidence for ascertaining whether a case had been made out and whether the evidence is of such a character as is likely to convince a jury that the offence might have been committed. The order of the learned Sessions Judge except with regard to one sentence, conveys an impression that he was of opinion that it was for a jury to decide the truth or otherwise in such matters and not for a Committing Magistrate. In this case, the Committing Magistrate has not stated that there is no evidence on which a jury could convict the petitioners but he seems to have felt that the evidence was not of such a character as would justify his committing the case. The learned Sessions Judge observes:
It would be sufficient to observe that there is enough evidence on record to justify the case being placed before a jury.
If he meant by this that there was enough legal evidence though it may not be acceptable,he was certainly wrong. If he had meant that there was enough acceptable evidence, then he would be right. But then in the next sentence he says:
It is for a jury to say whether they believe the witnesses or not.
I do not think the Judge was right in saying that it was for a jury to decide about the credibility or otherwise of the witnesses and that the Committing Magistrate had no right to decide that point also. The sentence which expresses his dissent from the Committing Magistrate is this:
I do not think it would be right to say that the evidence is so manifestly false that no reasonable man would believe it.
If he meant by this that he was of opinion that he was doubtful about the correctness of the finding ofthe Magistrate on the evidence let in and if he was right he would be justified in having set aside the order of discharge. It was pointed out by King, J.y in Ella Reddi, In re1, that it is the duty of the Magistrate to weigh the evidence and, if there is a reasonable doubt as to the truth or otherwise of the evidence before him, he should commit it. The question hence here is whether there is any scope for reasonable doubt, or whether there is a case in which the evidence is not of such a character as would be proper or safe to rely upon. In Chandrakasa Malardrayar, In re2, it was pointed out by a Bench of this Court that it is the duty of the Committing Magistrate to sift the evidence and see whether it is reasonably clear that upon that evidence the accused persons stand a chance of being convicted. As many as 19 witnesses were examined for the prosecution and about 9 for the defence. The Magistrate has pointed out that the evidence of all these prosecution witnesses who have spoken about the occurrence was interested; they being either the servants or dependents of P.W. 14. It is not disputed for the prosecution that there have been ill-feeling and rivalry between P.W. 14 and the first accused. If all the witnesses who have spoken about the occurrence are in one way or other connected with P.W. 14 and if the circumstances of the case disclosed the possibility of other disinterested persons--and a large number of them too--having witnessed the occurrence and they had not been examined, these are circumstances to be laken into consideration by the Magistrate as indicating that the evidence is not of an acceptable character.
2. The offence is said to have been committed at night, openly in the presence of a large body of persons who were with these accused. The carts were stopped. They were asked to proceed to a compound where the bulls were unyoked and the contents of these 17 carts loaded with ground-nuts were taken out. The cartmen were asked to go away and it is said that they were even offered the cart-hire by the dacoits. If that was so, it should have attracted a large crowd and it is in evidence that there are more than 100 houses near the scene of occurrence. None of them have been examined. Apart from this, there is also the fact that all the witnesses, except one, said that it was a dark night. At the same time it was stated that all these 17 carts had each of them a light and that there was a torchlight in the hands of the first accused. If it was dark and there was no light, the witnesses could not have seen the dacoits; and if there were 17 lights, then it must have been possible for all of the witnesses to have seen them all. It is significant, as pointed out by the Magistrate, that no two witnesses are agreed as regards the persons whom they saw. Each gave his own list of persons whom he saw. Further, it is also to be remembered that the attitude of the cartmen, if the evidence is true, was against these dacoits, for they would not even receive the money. It is in evidence that P. Ws. 1 and 2 were asked to go out under the pretext that they had to answer the calls of nature and that they went for the purpose of reporting to P.W. 1.4. If that was so, these victims must have made up their minds to take action, or to get action taken, against these dacoits for what they had done that night. It is also in evidence that there is a police outpost very close to the scene of occurrence, but no complaint appears to have been made, though during the course of the enquiry it was said that an attempt was made to give information at the outpost and but there was no one there.
3. Further, the occurrence was on the 19th night and no information to the police was given earlier than the 24th, vide Ex. C. There was absolutely no justification for' this delay. Chinna Salem is within 9 miles of the scene of occurrence and it will not take more than 2 or 3 hours to reach Ghinna Salem and give a complaint even if there was no one at the outpost near the scene of occurrence.
4. There is one other circumstance which throws considerable doubt as regards the version given by the prosecution, namely, that in Ex. C, the first information given which looks as if it had been prepared with care as the names of even the witnesses also are mentioned, there is no mention of accused 4 to 11. Of course, the name of the first accused was mentioned because he is the leader of the party against whom P.W. 14 had a grievance.
5. Next, it is rather surprising that the stolen articles have not been recovered. The articles that are said to have been taken, are said to be worth Rs. 1,700. It was a large amount for a villager and it is surprising that no attempt was made to seize the articles. During the course of the investigation certain ground-nuts in the railway station yard at Chinna Salem were sought to be identified as the goods that were stolen but, as pointed out by the Magistrate, the attempt was ludicrous. They were able to get only a small quantity of shelled ground-nuts and even the gunny bags were not identified as the bags that were stolen. In a case like this, the first duty of the prosecution would be to get at the articles, especially as they were not articles that can be easily kept hidden. The articles found in Chinna Salem Railway Station were articles purchased by the first accused and that was made clear by the accounts seized which showed that the first accused had paid money and purchased enough ground-nuts to get the shelled ground-nuts that were found in the railway station. The failure on the part of the prosecution to seize the grouftd-nuts in time or to take any steps to seize them, is a circumstance which throws a good deal of doubt on the prosecution version.
6. Further, the evidence as to the alibi of the first accused was sought to be corroborated by letters written by him which go to indicate that he had an idea of attending the funerals of his father-in-law, beforce the occurrence. In addition to this, there was the evidence of witnesses who proved that he was there and the village was 60 miles away. Though that by itself would not be sufficient, that is a circumstance to be taken into consideration by a Magistrate and, if the other circumstances are also taken along with this, I think this is a case in which the Magistrate was justified in thinking that the evidence was not of such a character as would be likely to convince a jury about the guilt of the accused. At any rate, there was considerable reasonable doubt about many aspects of the prosecution evidence on which the accused would be entitled to the benefit of the doubt which rightly influenced the Magistrate in coming to the conclusion that he should not commit the accused to the Sessions and I do not think he was wrong.
7. It is rather unfortunate, that the learned Sessions Judge has not discussed any of these points. He simply noted that it would be embarrassing if he were to discuss them. What was in the mind of the Judge is net clear. If he only meant that it was not the duty of a Committing Magistrate to sift the evidence to see if it was acceptable or not, he is wrong. But if he was of opinion that his appreciation of the evidence was incorrect, he has not indicated it in his order. The Magistrate has dealt with the case in all its details and, having read his order, I do not think I will be justified in differing from him in his appreciation of the evidence.
8. This is a case in which there is a good deal of doubt as regards the truth of the evidence of the prosecution witnesses on various points. There has been delay not only-in investigation but also in giving the first information to the authorities. The stolen articles have not been seized. In addition to all these, the names of as many as 8 accused persons had not been mentioned in the first information report given some days after the occurrence. When all this is borne in mind and if the evidence is sifted in the light of these facts, I think the Magistrate was right in thinking that there was not enough reliable evidence that the accused were guilty.
9. The order of the learned Sessions Judge, setting aside the discharge of the petitioners, is cancelled and the order of the Magistrate discharging them, will be restored.