1. This is an appeal from the judgment and sentence of the learned Sessions Judge of Shahabad who, differing with the assessors convicted four persons, Jang Rai, Keshwar, Singh or Rai, Ram Narain and Anjor Ahir under Sections 148, 395 and 326 read with Section 149 and sentenced the first to 10 years' rigorous imprisonment, the others to seven years each.
2. Originally eight persons were arraigned before him on these charges but four have been acquitted, though we confess we are unable to appreciate any difference between their cases and those of the present appellants.
3. It is alleged that 200 of the tenants of Barsingha, a village in the Ballia District, crossed the Ganges on the day of occurrence and looted the fields of the Suremanpur Burja tenants. It is also alleged that one Barhamdeo Rai (not in custody) pursued one Chegan and speared him, killing him instantaneously. Then it is said that Sheo Gobind, who has been tried and acquitted on his establishing a convincing alibi, pursued Bhola Rai and speared him so that he also died.
4. Harnarain or Harnandan Rai, P.W. No. 2, was grievously hurt with a spear so that his dying declaration had to be taken and then the mob disappeared us suddenly as they had come. There had been already an apprehension of a breach of the peace between the men of Suremanpur Burja and Salempur and so bitter was this quarrel that a Police guard had to be posted on the chur. In the meantime, however, some of the Barsingha ryots had obtained settlement from the Collector of land in Salempur, which appears to be a khas mahal, and this annoyed both the Salempnr people and the people of Suromanpur Burja who also wanted settlement of those lands.
5. The defence is that the boundary dispute between Salempur and Suremanpur culminated that day in a light in which these persons were lulled and wounded and that the two sets of villagers combined to implicate Harsingha men. It is found by the Judge that this boundary dispute had not been settled and there are points in this case which convince us that the defence story is true. All the witnesses swear in the clearest way that Shoo Gobind speared Bhola Rai. There is no room for doubt or escape from this statement and as it has been found to be totally false, this considerably discounts the other evidence as to identification on which the whole case against the appellants turns. It is not like a case where an offender has been given the benefit of the doubt on showing strong evidence of alibi as against a mere allegation of presence in the riot.
6. The identification made by nearly all the witnesses is discredited by their false charge against Sheo Gobind and Bechu Dhobe, P.W. No. 19, alone is left untouched by it and it is on his evidence principally that the learned Judge seems to have relied.
7. Now this Bechu Dhobe was the first person examined by the Police, and he stated that 200 men had come from Barsingha but gave no names whatever.
8. The first time any names are said to have been mentioned are by Harnarain at the Chekwara where he was lying wounded, and it seems reasonably open to doubt whether lie made such a statement. If he did, he clearly falsely implicated Sheo Gobind in the murder of Bhola Rai and that same night before the Deputy Magistrate at Lalganj he omitted to mention Jang Rai.
9. The other witnesses do not appear to have named any one till the 29th March, three days after the occurrence, though Nihora and Gull were with the Sub-Inspector from the first. It is remarkable that the Salempur witnesses admit that they ran away and hid themselves for two or three days. This clearly shows that they were afraid of being implicated in the riot.
10. The learned Judge nowhere gives his own finding on the truth or Falsity of each witness's statement. He relies entirely on the differences in what they say in Court and what they said or are alleged not to have said before the Police. We must point out that it is exceedingly dangerous to appeal from evidence judicially recorded under the sanction of cross-examination to alleged statements made to the Police which are not judicially recorded, it is the Judge's duty to make up his mind while the witness is before him whether he is a witness of truth or falsehood, and it is only when the Judge sees any reason to distrust his evidence that omissions in a Police record can become of any importance.
11. Such findings as this: 'It is not clear whether the name of Mahabir appears in the Police papers or not' are wholly irrelevant.
12. For the prosecution it may be noted that there are two Mahabirs and twe Sheo Gobinds mentioned and that many of the identifications were not by name.
13. There seems to be a doubt thrown throughout the evidence and the judgment of the learned Judge both as to the place of occurrence and the parties engaged in the quarrel. The place pointed out to the Sub-Inspector by the witnesses and noted by him on his map does not agree with the evidence nor with the map and khasms prepared by the patwari long before this occurrence for a wholly independent purpose. The Judge raises a cloud of doubt on this, but does not tell us what his own finding is.
14. His final finding on page 52 contradicts the oral evidence. But he then starts off again throwing a cloud of doubt on his own finding.
15. The only finding necessary was that what ever the particular spot was where the crops were being cut, it was undoubtedly south of the lands settled with the Barsingha tenants. If, therefore, the Barsingha people looted those crops they are certainly guilty of dacoity.
16. But on the other hand the fact that they had no interest whatever in such an act and that they had admittedly come two days before with the Deputy Collector to take over the fields which had been settled with them goes strongly in favour of their defence, and the fact that the real place of occurrence was at some indefinite spot to the south largely supports the theory that the boundary dispute between Salempur and Suremanpur was the real cause of the fight and that the Barsingha people had nothing to do with it. There is no doubt that the boundary dispute was still going on and the witnesses have foresworn themselves in totally denying it in evidence. The defence say the occurrence was somewhat earlier in the day. If it was early enough for Sheo Gobind to have been present, a fact to which the prosecution witnesses have tied themselves, then there was ample time for concoction before the Police came.
17. It is most significant that Bechu Dhobe, a man of Salempur, states the story that 200 Harsingha men had come across and killed two Suremanpur men, and then disappears for two or three days. It is only when the Salempur people found that the Police had accepted this story that they came forward with evidence.
18. It is inexplicable how 200 persons came across the Ganges in boats and yet no trace of their coming or going appears in evidence. They must have had at least five large boats and those boats must have been seen. Yet the evidence in regard to the only boat spoken of in which Sheo Gobind and one other man are said to have started from the other side, has been disbelieved and in our opinion, rightly so. As regards the loot the Judge finds there was not much looting. But the only evidence is that some paddy was found cut and admittedly Harnarain and others were cutting their paddy that day. There is no suggestion that the paddy was irregularly cut and there was no mention of loot to the Police.
19. The witnesses who say that the loot was after the murders are disbelieved. A glance at the table of identifications prepared by the learned Judge shows that Sheo Gobind's false identification vitiates the identification of every one of the accused for we have shown that Bechu's evidence, coming so late sis it does after his first information, cannot have any weight.
20. The argument that it is difficult to believe that a party who had had two men killed and one wounded would make a false charge against other people, is negatived in this case by the positive and detailed false accusation against Sheo Gobind inside by Harnarain himself from the very first.
21. It is contended that the defence did not put forward the story of the boundary riot until they came to argue the case, but we find clear cross-examination to the point in the evidence of P.Ws. Nos. 1 and 2 and in the written statement, paragraph 20 to end. Reading the evidence as a whole we are clearly of opinion that the assessors were right and that the Barsingha people had nothing to do with this occurrence. We accordingly allow the appeals, set aside the convictions and sentences and direct the acquittal and release of the accused.