Basangi Kui and Others vs Emperor

Harries, C.J.—This is a petition preferred by eight persons who were convicted u/s 304 read with Section 149, Penal Code, and each sentenced to a term of four years'' rigorous imprisonment and convicted u/s 147, Penal Code, without any separate sentence.

These eight petitioners together with another 16 were tried by a learned Magistrate of the first class empowered u/s 30, Criminal P.C., upon a charge of rioting and of killing an Excise Sub-Inspector named Santosh Kumar Sarkar. The trial Magistrate convicted 15 of the accused persons and acquitted the remainder. On appeal to the Court of the Sessions Judge, the learned Judge acquitted seven of the accused persons and affirmed the conviction of the eight petitioners. It has been contended before us that on the materials on the record no conviction can be maintained.

On 26th April 1941, the deceased Excise Sub-Inspector, Babu Santosh Kumar Sarkar, went accompanied by some Excise peons and oonstables to a village called Kaida and there searched the houses of some of the villagers for illicit liquor. He found four pitchers of illicit liquor lying concealed near a jack-fruit tree and then searched a house close to the tree and recovered another pitcher of liquor. In the meantime it is said that a mob of 75 to 100 villagers collected, and the members of it were in an angry mood. Kuni Kui, the owner of the house, in which a pitcher of liquor was discovered, came on the scene, and the Excise Sub-Inspector asked her for her name. The petitioner Balema Kui urged Kuni Kui not to give her name, and the latter then refused to answer the Sub-Inspector. The Excise Sub-Inspector then asked some of the villagers to carry the illicit liquor to the railway station; but again it is said that the petitioner Balema Kui intervened and pushed the pitchers over with the result that they were broken. The mob began to throw stones and clods of earth and shouts of ''maro, maro'' were raised. Eventually the mob got out of control and began to chase the Excise Sub-Inspector who fled towards the jungle. The constables and Excise peons, who had accompanied the officer, appeared to have left him to his fate and fled for their lives. The Excise Sub-Inspector was overtaken and was eventually beaten to death. A constable, Gopinath Gour, succeeded in reaching Posaita Railway Station and caused a message to be sent to the nearest thana. The Sub-Inspector of that thana hurried to that spot and found the corpse of the Excise Sub-Inspector lying near a jack-fruit tree, some 27 paces from the house of the petitioner Kuni Kui. There can be no doubt whatsoever from the medical evidence that this unfortunate officer was battered to death.

A number of suspects were arrested and were eventually put up for a test identification in jail when they were identified by a number of witnesses. These witnesses deposed against the accused before the learned Magistrate, and their evidence has been considered by the learned Sessions Judge. He has accepted the evidence against the eight petitioners while finding it doubtful as against the others whom he acquitted.

The whole case for the prosecution depends upon identification. That a riot took place is undoubted, and further it is clear that the Excise Sub-Inspector met his death at the hands of the rioters. The question which has to be decided is whether the prosecution have established the presence of the eight petitioners in the riot.

There were a number of identifying witnesses including two constables, three excise peons and other persons; but the learned Sessions Judge has found that all the identifying witnesses except one were present in the village of Kaida when the suspects were arrested and therefore had ample opportunity of seeing them before they were put up for identification at the test identification parade. In those circumstances, is the identification by those witnesses of any value and should it have been relied upon by the learned Judge to maintain a conviction?

There is one witness Ratan Chand Mandal (P. W. 19) who was not present when the suspects were arrested and who did not have an opportunity of seeing the accused before the test identification. This witness identified eleven persons as being in the mob and included in those eleven persons are all the petitioners except Kuni Kui and Balema Kui. The learned Sessions Judge has accepted this witness''s evidence of identification and where he found his evidence supported by the evidence of the other identifying witnesses, he convicted the petitioners. With regard to the petitioners Kuni Kui and Balema Kui, who were not mentioned by this witness, the learned Judge convicts them, because he seems to think that there is no doubt about their presence, though he is very doubtful about the evidence of the identifying witnesses other than P. W. 19, who does not identify these two women.

The fact that the witnesses other than Ratan Chand Mandal saw these accused persons before the test identification parade makes their identification worthless. It would, in my view, be highly dangerous to act upon such evidence. Having seen the suspects, their identification at the test identification parade is worthless and so was their identification in the trial Court. They may or may not be telling the truth; but it would be dangerous to act upon their evidence. In my judgment, the evidence of all the witnesses other than Ratan Chand Mandal (P. W. 19) ought to be eliminated in so far as it deals with identification. That being so, the case must rest upon the evidence of this last witness.

I have considered the evidence of this witness, and it is extremely strange that he makes no mention of either the petitioner Kuni Kui or the petitioner Balema Kui, though the case for the prosecution is that these two women were mainly responsible for the trouble. If he was there, it is strange that he was unable to identify these two persons. He does not even refer to the early incidents, relied upon by the prosecution. However, he does mention that an angry mob collected and finally chased the Sub-Inspector, and he identified 11 persons as being present in the mob. It is, however, to be noted that he does not assign any specific part to any of the persons and does not say in terms that they were amongst the persons who actually chased the Sub-Inspector. He says that the Sub-Inspector fell back followed by the mob, some of whom had stones and some had wood and lathis. Whether all the mob including the women joined in the chase is not clear from his evidence, and all that can be safely inferred is, even if his evidence be accepted in its entirety, that the 11 persons whom he identified were members of the mob which collected round the Sub-Inspector in the village. Whether they took part in the chase and the beating of the Sub-Inspector in the jungle cannot be ascertained from the evidence.

Can a conviction for an offence u/s 304 read with Section 149, Penal Code, be based upon this man''s evidence? The learned Sessions Judge realized the danger of acting on the evidence of one witness; but he finds corroboration of his evidence in the evidence of the other witnesses, though he had pointed out that it would be dangerous to accept their identification. It appears to me that once the evidence of the other witnesses is rejected as too dangerous to act upon, it cannot be used to corroborate this one witness Ratan Chand Mandal. Tainted evidence or dangerous evidence cannot be relid upon for any purpose not even for corroboration. If a Court disbelieves a witness, it cannot use his evidence to corroborate a witness which the Court believes. Further, if the Court cannot form any opinion as to the truth or otherwise of a witness''s evidence and accordingly rejects it, the Court cannot pray it in aid to corroborate some other evidence. If the evidence is rejected, it must be rejected for all purposes. In this case it would be highly dangerous to accept the evidence of the witnesses who had seen the accused and that being so, their evidence cannot safely be relied upon for the purposes of corroboration. This case therefore must stand or fall upon the evidence of Ratan Chand Mandal (P. W. 19).

To convict these petitioners upon this man''s evidence would be highly dangerous, even if his evidence was somewhat stronger than it is. In any event, the petitioner Kuni Kui and the petitioner Balema Kui cannot be convicted upon this man''s evidence. Further, as I have pointed out, even if the evidence be accepted in its entirety, it does not prove conclusively that these petitioners joined in the chase and were present when the Sub-Inspector was killed. They might have been present when the noisy mob surrounded the Sub-Inspector in the village but the crucial question is whether they chased the Sub-Inspector with the intention of overtaking him and beating him to death. The evidence of Ratan Chand Mandal is not sufficient to establish that, and, therefore, the case for the prosecution is not established beyond all doubt.

It is unfortunate that no one has been convicted for what was undoubtedly a brutal crime. This Excise Sub-Inspector, when attacked, was doing his duty and yet the guilt of no one has been established. That however is due entirely to the unfortunate mistake committed by the investigating officer in taking the witnesses to the village when the arrests were being made. That has thrown such a doubt over the case for the prosecution that a conviction has become impossible. Though the case be unfortunate, that is no reason why the petitioners should be convicted where the evidence does not warrant it.

In the result therefore I would allow this petition, set aside the convictions and sentences and make the rule absolute. The petitioners are on bail and their bail bonds are hereby discharged.

Manohar Lall, J.

I agree.