Lancelot Sanderson, C.J.
1. This was a Rule obtained to show cause why the conviction and sentences passed on the petitioners should not be set aside upon the grounds set out in the Rule.
2. The complainants were three individuals, Chatur, Bhagirath and Madhab, three brothers, and Chatur was the only one who gave evidence on behalf of the prosecution. The learned Judge pointed out in his judgment that 'neither Bhagirath nor Madhab had been examined for the prosecution though they took such prominent parts in the affair.' Madhab's absence was explained by the allegation that he was too ill to come to Court, and his wife was called on behalf of the prosecution to prove that fact. No explanation was given for the absence of Bhagirath. Therefore, as far as the complainants were concerned, the case rested upon the evidence of Chatur alone.
3. The evidence of Chatur was not entirely satisfactory. The learned Judge pointed out that part of his story was so extraordinary that he could not accept it. He said, 'as regards the alleged visit of Chatur to the cutchery shortly before the occurrence I am unable to believe this story, as it is put for- ward at a very late stage and 11 absurd on the face of it.' When a part of the evidence of perhaps one of the most important witnesses in the case has been characterized as absurd on the face of it, it makes one hesitate to accept the rest of the evidence of that witness. So much for the evidence of Chatur, the complainant.
4. Evidence was given by a Police Officer on behalf of the defence. That evidence was important from the accused's point of view But the learned judge has disregarded this evidence on the ground that it could not be accepted; and the reason for not accepting it was that the Police Officer has said that Chatur did not go to the thana to make a complaint. He has come to that conclusion mainly on the ground of admissions alleged to have been made by two of the accused. Now, it is to be pointed out that Chatur in his petition did not say that he had gone to the thana, nor in his statement to the Sub-Divisional Officer did he say that he had been to the thana to make a complaint and it is not until at a late stage that he alleged that he went to the thana.
5. With regard to the alleged admissions by two of the accused, there is some doubt, upon the words used by the two accused, as to whether they amounted to express admissions that Chatur had been to the Police station to make a complaint.
6. These are matters which are well worthy of consideration. The learned Judge himself says: 'The point is, therefore, not free from doubt, but I see no reason to disbelieve the statements of the two appellants on this point as there seems to be no motive for them to invent this detail.'
7. Under the circumstances, we feel that the question of the guilt of these accused is not free from doubt on account of the matters which I have specified and for these reasons; we think the safer course to take is to say that this Rule should be made absolute. The consequence of that will be that the convictions of, and the sentences passed on, the accused are set aside and they are directed to be released from their bail.
8. I agree.