Medapa, C.J.
1. The Special First Class Magistrate of Ramanagaram committed the appellants (accused 1 to 4 in Cr. A. No. 39/52-53 and accused 5 in Cr. A. No. 42/52-53) along with six others to take their trial before the Court of Session, Bangalore, accused 1 to 11 for an offence under Section 143; accused 5, 6, 7, 9, 10 and 11 for offences under Sections 149 and 302; accused 2 and 3 for an offence under Section 302; and accused 1, 4 and 8 for offences under Sections 109 and 302, Penal Code. The case of the prosecution was that, on the night of 12-8-1951, the accused persons formed themselves into an unlawful assembly at Singarajapura village in Channapatna Taluk with the common object of murdering S. N. Narasimhamurthy Rap, Proprietor of the 'Standard Motor Service', Singarapura, due to the ill-will that existed between them, that in prosecution of that common object the accused armed themselves with deadly weapons, chased deceased Narasimha-murthy Rao when he was returning from Aniyur tank at about 8 P. M., that accused 2 and 3 at the instigation of accused 1, 4 and 8 hit him with an axe and 'betta katti' with the intention of causing his death, that as a result the deceased Narasimhamurthy Rao died on the spot and that the accused thereby committed offences punishable under Sections 143, 144, 148, 149, 302 and 34, Penal Code, and are liable to be dealt with according to law.
The assessors were unanimously of the opinion that accused 6 to 11 were not guilty of the offences with which they were charged and the learned Sessions Judge, agreeing with their opinion, acquitted those accused. All the assessors were also unanimous in their opinion that the appellant in Cr. A. No. 42/52-53 was not guilty of the offence he was charged with, viz. of an offence under Section 143, Penal Code but the learned Sessions Judge discarded their opinion and convicted the said appellant (accused 5 in the Sessions Court) for an offence under Section 143, Penal Code and sentenced him to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for one month. Hence Cr. A. 42/52-53. The majority of the assessors were further of the opinion that the appellants in Cr. A. No. 39/, 52-53 (accused 1 to 4) were not guilty of the offences with which they were charged but one of the assessors was of the opinion that the said appellants were guilty of those offences. The learned Sessions Judge rejected the opinion of the majority and, agreeing with the opinion of the single assessor, convicted the appellants of the offence under Section 109 read with Section 302 Penal Code and sentenced each of them to death. The learned Judge further convicted them of an offence under Section 143, Penal Code and sentenced each of them to a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for one month. Hence Cr. A. No. 39/52-53 by accused 1 to 4. The learned Sessions Judge has also made a reference to this Court under Section 374, Criminal P. C. for confirmation of the sentence of death passed on accused 1 to 4.
2. The learned Sessions Judge has relied on the evidence of the eye-witnesses (P. Ws. 15 and 16) and on the discovery of M. O. 2 and M. O. 3 in consequence of the information furnished by one or the other of the appellants and on the ill-will existing between the deceased and his partisans including the eye-witnesses on the one hand and appellant 1 and his partisans including the other appellants on the other, for his finding that the appellants are guilty of the offences of which they have been convicted.
3. The main contentions of the learned counsel for the appellants are -- (1) that the learned Sessions Judge, while agreeing with the opinion of the assessors in discarding the prosecution evidence as regards accused 6 to 11, was wrong in relying on the very same evidence and in rejecting the majority opinion of the assessors, as regards the appellants; (2) that the learned Sessions Judge was wrong in relying on the evidence of the alleged eye-witnesses to the occurrence (Viz. p. Ws. 15 and 16) when he discarded the said evidence as regards accused 8 and that the inherent improbabilities in the version given by the eye-witnesses makes it quite unsafe to act on them; and (3) that the evidence of the eye-witnesses is not strictly consistent and definitely opposed to the evidence of the doctor, (P. W. 17) and the defence witnesses examined in the case.
The learned Advocate-General, on the other hand, submitted that there is no warrant in law to support the proposition that because the evidence of an eye-witness is discarded as regards one accused, the same should be discarded as against all the other accused and that the learned Sessions Judge was quite correct in acting on the evidence of the eye-witnesses. His argument is that the evidence of the two eye-witnesses has to be accepted and that their evidence leaves no room to doubt regarding the guilt of the appellants and that the benefit of doubt given by the learned Sessions Judge to accused 8 can have no bearing on the guilt of the appellants before us or the credibility of the evidence of the eyewitnesses. He pointed out that the learned Sessions Judge has given good and valid reasons in his judgment for rejecting the opinion of the assessors regarding accused 3 and the majority opinion regarding accused 1 to 4.
The learned Advocate-General also referred us to the other circumstances appearing in the case, viz. (1) the discovery of the weapons with which the deceased was said to have been injured, in consequence of the information furnished by the respective appellants: (2) the presence of blood-stains on the kenicker, M. O. 8, worn by accused 2; and (3) the admitted and established ill-will between the deceased and the appellants, in support of his contention that the evidence of the eye-witnesses is true and must be accepted.
4. It will be more appropriate to deal first with the circumstances relied upon by the learned Advocate-General in support of the prosecution case for circumstances, as has often been put, do not lie though witnesses may. (His Lordship considered and valued the evidence of weapons which were devoid of blood stains and the evidence of the doctor and proceeded).
5. The faction in the village and the ill-will existing between the deceased and his party including the eye-witnesses on the one hand and the appellants and their party on the other, can be a double-edged weapon for just as it is possible to argue that the appellants on account of ill-will inflicted the injuries on the deceased and killed him, it can also be argued that the eyewitnesses, who belonged to the party of the deceased, are pressing into service the murder of the deceased of which they know nothing to involve their enemies, viz. the appellants in the crime. It, therefore, follows that much importance cannot be placed on the mere existence of ill-will between the parties. The learned counsel for the appellants contended that, though there is positive evidence to show that the prosecution witnesses bear ill-will towards the appellants, there is no positive evidence to show that the appellants bore ill-will towards the deceased.
He argued that, though the deceased and his party had, even after a settlement of the differences between the two parties regarding the Village Panchayati Election, been manoeuvring things against the appellants in the matter of the panchayat election and to secure and focus official frown on the appellants, there is no evidence on record to show that, prior to the incident and after the settlement embodied in Exhibit P-14, the appellants and their party men tried to steal a a march over the deceased and his party men or tried to hurt in any way the deceased or his party men. He submits that these circumstances warrant his contentions, first that the evidence of the eye-witnesses should not be taken at itsface value and next that the motive for the crime, viz. enmity of the accused towards the deceased should not be taken as having been established.
It, however, appears to us that if regard is had to the position and status of the accused, it will not be unsafe to presume that feeling of enmity on the one side would normally engender a similar feeling on the other side and that the reversal of the agreed settlement regarding the election must have evoked & revived bitter feelings. It will be clear from the above discussion that apart from the doubtful value to be attached to the proved enmity between the parties the other circumstances referred to and relied on by the learned Advocate-General do not give any point or enhance the probative value of the evidence of the eye-witnesses.
6. The learned Sessions Judge had relied mainly upon the evidence of the two eye-witnesses in the case, viz., P. Ws. 15 and 16, for convicting the appellants. (His Lordship went through their evidence and proceeded). This evidence, if accepted, will fully support the conclusion of the learned Sessions Judge regarding the guilt of the appellants but it is pointed out by the learned counsel for the defence that the evidence of these eye-witnesses is inconsistent and discrepant. In support of his contention he refers to the evidence of the doctor, who conducted the post mortem examination (P. W. 17) to the effect that the deceased could not have eased himself a short while before his death as stated by P. Ws. 15 and 16, because the large intestines of the deceased was full of faecal matter. The learned Advocate-General submitted that it is not unusual to find faecal matter in the large intestines of a deceased person even though he had evacuated a short while before his death; but this submission is not supported by any evidence on record nor was the opinion of any well-known text book writer cited to support this proposition or in opposition to the abovesaid opinion of the doctor.
7. The learned counsel for the defence next referred to the evidence of the doctor regarding the improbability of the injury found on the dead body having been inflicted with M. Os. 2 and 3 mentioned above and argued that the evidence of the eye-witnesses contrary to the version of the doctor should be discarded. The learned Advocate-General characterised the discrepancy between the evidence of the doctor and the eye-witnesses referred to above as immaterial and of no consequence but the said discrepancies support the contention of the learned counsel for the appellants & to that extent cast a doubt on the veracity of the evidence of the eyewitnesses. Further, the said discrepancy can by no means be said to be so inconsequential as the prosecution say for, if the story that the deceased went with P. Ws. 15 and 16 to the tank to ease himself is rejected, the basis of the story for the prosecution is destroyed. The prosecution will then have no explanation to offer regarding the circumstances which took the deceased and the eye-witnesses to the tank or for their presence at the scene of occurrence.
8. The learned counsel for the defence next stressed on the evidence of P. W. 15 to the effect that he found accused 8 on the scene and heard him egging on appellants 2 and 3 to kill the deceased and on the evidence of the doctor (D. W. 1) who states that at the time of the occurrence accused 8 was an in-patient in his hospital suffering from pneumonia and running a temperature of 105 and therefore unable toleave his bed and submitted that this circumstance clearly established that P. W. 15 had not hesitated to tell lies so that he may involve an enemy of his, accused 8, In the crime and that his evidence should therefore be entirely discarded. The learned Sessions Judge has apparently accepted the evidence of the doctor, D. W. 1, in preference to the evidence of P. Ws. 15 and 16/ and acquitted the said accused.
The learned Advocate-General submits, as already pointed out, that there is no warrant for the proposition that, because a witness has not been believed or has been shown to have uttered a falsehood in one particular, his evidence should be entirely discarded. In support of his submission he relied on two decisions reported in --'Prag v. Emperor' and --'Qamrul Hasan v. Emperor', AIR 1942 Oudh 60 (B) which set out the proposition:
'The principle 'falsus in uno falsus in omnibus'cannot be universally applied in India.'
The qualification 'cannot be universally appliedin India' is not without significance and that itis so will be clear from the observations of theirLordships of the Federal Court in a decisionreported in -- 'Piare Dusadh v. Emperor' wherein it is set out:
'Once a witness has been found to be whollyunreliable it is unsafe to place any relianceupon any part of his testimony. It should notbe open to the prosecution to pick out a bithere and a bit there from the evidence of awitness whom they themselves are not willingto accept as a witness of truth, and to usethese salvaged bits, from testimony which isotherwise contaminated, to bolster up their caseagainst particular accused persons.
The gist of the learned High Court Judge's finding on the whole case is contained in the observation that there was really no explanation why anybody should have invented a false case against the appellants. This is not in our opinion a justifiable point of view to adopt in a case like the present ............'.
The decisions above referred to only go to illustrate the well accepted rule that each case must be judged on its merits with reference to the evidence and circumstances appearing in that case.
9. He further submits that even if the evidence of P. W. 15 is discarded there is nothing on record to discredit the evidence of P. W. 16 and submits that the said evidence fully warrants the conviction of the appellants. It has already been pointed out that the evidence of P. W. 16 is inconsistent with the evidence of the doctor regarding the version that the deceased eased & washed himself immediately prior to the incident & to that extent at any rate the evidence of P. W. 16 cannot be said to be devoid of all blemish. Further the evidence of P. W. 16 in so far as it goes to corroborate the evidence of P. W. 15 regarding the presence of accused 8 at the scene of occurrence and of his participation in the crime, is open to the same objections to which the evidence of P. W. 15 is subject and to that extent cannot be said to be free from infirmity or suspicion. It is also in evidence that P. W. 16 along with P. W. 15 had deposed against the accused in another case and in that case the accused persons (appellants) had been acquitted. This circumstance is not without significance when the proved inimical disposition of P. Ws. 15 and 16 towards the accused is remembered. The above circumstances necessitate a closer scrutiny of the evidence of the eye-witnesses than as usual with the other circumstances appearing in the case witha view to find out whether the evidence of the eye-witnesses could be accepted and acted upon.
10-11. There are several circumstances in this case which go to show that the prosecution version, as detailed by the eye-witnesses is not free from doubt. (After narrating these circumstances and discussing them his lordship continued).
12. It has also to be noted that in this case the patel has failed to send any report to the police. The patel, who has been examined as P. W. 27 states specifically that though he was sent for and arrived at the scene at about 11 p.m., he did not send the report though he admits that he was aware that his duty as patel required him to inform the police or at least send a report about the occurrence to the police. This lapse of duty on the part of the patel and the eagerness evinced by P. W. 16 which impelled him to go to the police and report the matter to them were commented on by the learned counsel for the defence as circumstances which necessitate the inference that all is not fair and square with the prosecution version and investigation. It must be conceded that the failure of the patel to send a report to the police is curious. The admitted absence of any marks of struggle at the scene of occurrence is also a circumstance which militates against the story that the occurrence was at the place alleged by the eyewitnesses. (His Lordship discussed this part of circumstance and continued).
13. The circumstances narrated above go a long way to raise reasonable doubts about the veracity of the evidence of the eye-witnesses and we are therefore of the opinion that in this case the rule of prudence will not only Justify but almost demand an acquittal. We accordingly allow these appeals (Criminal Appeals Nos. 39 and 42/52-53), give the appellants (accused 1 to 4 in Cr. A. 39/52-53 and the appellant (accused 5) in Cr. A. 42/52-53 the benefit of doubt, set aside the convictions and sentences passed on them by the learned Sessions Judge and acquit them. The release forthwith of the appellants (accused 1 to 4) is ordered. The fine, if recovered from the appellants (accused 1 to 4 and accused 5), shall be refunded. The reference made by the learned Sessions Judge is rejected.
14. Appeals allowed.