Lancelot Sanderson, C.J.
1. In this case the appeal is by both the accused Gohar Ali and Torap Ali against the conviction of murder by the learned Additional Sessions Judge of Bakarganj. The assessors apparently had some difficulty in coming to a conclusion. But the learned Sessions Judge after asking them questions came to the conclusion that the first assessor had really arrived at the conclusion that the two accused committed the murder and that the second assessor had arrived at the conclusion that there was not sufficient evidence to convict the two accused of murder. The learned Additional Sessions Judge, as I have already said, agreeing with the first assessor and differing from the second, found both the accused guilty.
2. Now, after listening to the argument of the learned Vakil who appeared for both the accused and who put the case very clearly before us, and reading the evidence, my learned brother and I have come to the conclusion that as regards Torap Ali there is no doubt that the conviction was right, and 1 need not say anything more about him.
3. As regards the other accused Gohar Ali this caused us some anxiety. We have, however, come to the conclusion that the conviction ought to be upheld. The evidence with regard to the motive in the case of Gohar Ali is by no means as strong as that in the case of Torap Ali, and, if we had to rely to any great extent upon motive being proved to our satisfaction in this case, our conclusion might have been a different one. But in a case of this kind, where we are satisfied upon the evidence that the learned Judge was right in his conclusion that Gohar Ali was actually with Torap Ali at the time the murder was committed, it is not necessary for us to come to any definite conclusion as to what the motive was on the part of Gohar Ali. The learned Judge says, that he probably had a grudge against the naib, the deceased man. it is quite possible he may have heard that the naib had provided the Police officer with information and materials which might have led to a prosecution against Gohar Ali, under Section 1 0 of the Criminal Procedure Code; it is quite possible that in a small village like this, the fact of the naib having given such information might easily become public property and may have come to the ears of Gohar Ali as well as to the ears of other people. But as I have said before, in the circumstances of this case, we do not think it is necessary for us to come to any definite conclusion as to what the motive was which actuated Gohar Ali in committing this murder.
4. Now, as regards the question of identity, we are satisfied, first of all, that the learned Judge came to a right- conclusion upon the point as to the light. The evidence seems to be satisfactory upon that point. It does not depend upon the evidence of Sarat alone. His evidence seems to be corroborated by the evidence of everybody who could speak upon that question. Judging from the evidence, as far as we can judge when it is in the form of writing, we think the learned Judge was quite justified in coming to the conclusion that there was a light from the hurricane lantern hanging in the cutchery practically over the north-east corner of the bed upon which Sarat was sleeping. Then the next point to be considered is that this conviction of Gohar Ali really depends upon the evidence of Sarat. That is quite true. The question first of all is whether Sarat's evidence taken by itself should be accepted as the evidence given by an honest man. Speaking for myself, I think Carat's evidence, judging as far as I can when the evidence is put merely in the form of a written document, is that of a man who was honestly trying to give a true account of what he had seen. I am confirmed in that conclusion by the statement of the learned Judge who bad the great advantage of seeing him, via,, Sarat struck me as being a very careful arid ' reliable' witness, and I am satisfied that he gave his evidence with a due sense of responsibility, and that he would not have named Gohar Ali if he had not bean quite certain that it' really was he.'
5. One further remark I have to make in this connection; and that is that nothing' has been suggested, as far as I remember,' which would make one suspect in anyway that Sarat had any reason for saying that the second man was Gohar Ali, if, in fact, he was not Gohar Ali. Sarat apparently' had no grudge against Gohar Ali. There is no suggestion in the evidence either in the examination-in-chief or in the cross-examination that there was any bad feeling between Sarat on the one hand and Gohar Ali on the other.
6. Now, Sarat's evidence, to my mind, is corroborated in several very material respects. It is corroborated by the evidence of the two peons who were outside in the verandah. If I may here say, on reading the evidence of the two peons I am satisfied, as far as one can be satisfied when one has' only a written record to rely upon, that they were telling a true story They said that they were sleeping on the verandah and as soon as Sarat called out they got up, crying who is it.' Sarat at once said there were Torap Ali and Gohar Ali going away. That is certainly a material corroboration of Sarat's evidence.
7. Another thing which strikes us as corroboration of Sarat's evidence is this. It must be remembered that Sarat said that when he was roused by the cry of the naib and a bump on the floor, he saw within about 9 feet of him Gohar Ali in the act of getting out backwards through the 'sindh'. and Torap Ali standing, and what the two peons said was that when they got up and looked into the office through the railings they did not see Gohar Ali going through the hole, but saw Torap Ali going through the hole. That is just what would have happened if Sarat's story was a correut one. In that respect I think Sarat's evidence is corroborated by the evidence of the two peons.
8. Another thing that struck me is this that the two peons, when the door was opened, immediately went into the office and they found the body of the murdered man lying on the ground and his legs were still twitching, although he died almost immediately afterwards. There again is striking corroboration of Sarat's story, who said that he heard the cry of the murdered man --he must have cried immediately after he was attacked, and he, Sarat, waked up and called out to the peons, who immediately entered the room and then found the body of the murdered man actually moving just before he died.
9. Then again, as soon as the neighbours were called, Sarat said that the two men whom he saw in the office were Torap and Gohar.
10. Another thing which I wish to mention is that these two men, Torap and Gohar, were both neighbours of Sarat, and as I have said before, against whom he had no grudge whatever. He must have known them by sight; they were both within about 9 feet from him, perhaps one of them was within less than nine feet, and I am satisfied that there was a lamp burning in the office at that time. He, therefore, had ample opportunity of recognising both these men. He says that he saw Torap Ali and Gohar All, Gohar Ali in the act of getting out through the hole. The peons say that their attention was drawn by Sarat and they saw Torap Ali, so that the peons' evidence corroborates Sarat's story in that respect. At all events, it shows that Sarat's recognition of Torap was right, and, if his recognition of Torap was right, I see no reason why he should not be right as regards the other man, Gohar Ali, because both these men were only a few feet from him at the time his attention was drawn to them.
11. The last point is one to which I have already referred and to which I attach great importance and it is this, the learned Judge, who had an opportunity of seeing the witnesses and who evidently paid the greatest attention to the evidence, has come to the conclusion that the witness Sarat was a man upon whom he could rely. 1 gather that he was careful in his answers, anxious not to say more than what he was really convinced he could say, and this is a matter which this Court must take as most important in considering whether the learned Judge was right in arriving at the conclusion that Gohar Ali was one of the murderers.
12. For these reasons, I am of opinion that the conviction of Gohar Ali for murder ought to be upheld as well as the conviction of Torap Ali.
13. Having regard to the brutal nature of the offence, a murder committed without any extenuating circumstance, I see no reason why the sentence of death passed upon these two men should not be confirmed.
14. The result is that the appeal of these two accused persons, Gohar Ali and Torap Ali, is dismissed and the sentence of death passed upon them by the learned Sessions Judge is confirmed.
15. I agree.