Emperor vs Kunja Dusadh

Ross, J.—[His Lordship after dealing with facts referred to the contention of the prosecution that there ought to have been conviction but that the prosecution could not ask this Court to convict as the first of the statements on which it relied is not evidence as the record stands and then proceeded.] To deal with this contention it is necessary to consider the whole case. The first statement of Nawab Khan is merely corroborative evidence, and if it seemed that the evidence in Court was a true account of the circumstances in which Nawab Khan was wounded, I do not think that the mere fact that an inadmissible piece of corroborative evidence was on the record through a technical error should stand in the way of conviction here. There is, therefore, no necessity for a re-trial in any event. But in dealing with the evidence we must give the accused any benefit they may derive from the statements of Nawab Khan as if they had been properly admitted as they are an important element in the case.

The case for the prosecution is that on the evening of 29th March Nawab Khan, a Tokedar of Benipur Factory, was returning from Benipur Hat to his village Antore along with Phulwa Chowkidar and other persons. Near a Gachhi and Banswari of Jagannath Hajari he was attacked by a number of men some of whom were armed with axes and one with a sickle and the others with lathies. He was struck on the leg with an axe and was then assaulted generally, and finally one Somna cut off his nose and right ear. Twenty-four injuries were found on his person of which five were severe. Phulwa Chowkidar names eleven persons as having been in the party with Nawab Khan of whom six have been examined in Court. Nawab Khan names thirteen, adding four'' namely. Baldeo Chowdhury, Gopi Jha, Asarafi Chowdhury and Ramkishun Jha, to those named by Phulwari and omitting two. namely Chuni and Mithu Tati. In his dying declaration, however, he had said that he did not know the names of the persons who were with him except Phulwari. Of these persons six have not been examined at all, namely. Gopalji Jha, Baikunt Jha, Baldeo Missir, Bagru Jha, Rupan Dusadh, Mithu Tati, and Asarafi Chowdhury on this point. Of these persons not examined in Court the Sub-Inspector of Police examined on the 30th March, three Gopalji Jha, Baldeo Missir and Bagru Jha, and none of them named any of the assailants. The Sub-Inspector says that he sent for the other witnesses but they did not come. Of the witnesses examined in Court Phulwa gave what has been called the first information on the 29th, seven were examined on the 3rd April and one on the 1st April. These witnesses are all tenants and labourers of the Benipur Factory and their residence is Anatore. The explanation of their delay in coming forward that is now offered is that they were afraid of Ganowra Dusadh, one of the accused who is a bad character; but only two of the witnesses give this reason. One is Buchan Jha who says in his evidence that he stated before the Police that he was afraid of Ganowra as people said that he was a desperate character but he adds that this he heard three or four days after the assault. The other is Baldeo Chowdhury who says that he was hiding through fear of Ganowra, but he admits that he had only heard of the bad livelihood case against Ganowra and that Ganowra had never beaten him. The delay in the production of this evidence seems to me a grave reason for doubting the truthfulness of the witnesses. Further, it appears from Mr. Guise''s evidence that several persons who came to the factory that night with Nawab Khan said that they had been with him and of these Mr. Guise picked out Phulwa. It does not appear who the others were, and if the witnesses are believed they were not among them because they say they did not go to the factory. As to the details of the occurrence, Phulwa says that Nawab Khan was struck, on the leg from behind, but the Assistant Surgeon says that the injury on the leg could not hare been caused from the back. Nawab Khan''s own account of the affair is not consistent as the learned Sessions Judge has shown. Moreover there are serious discrepancies between his earlier and later statements. In the statement made to Mr. Guise he named only the Dusadhs as his assailants. In his dying declaration he omitted two of the names that he had previously given and substituted the names of two Babhans. Moreover in the earlier statement he said that Somna cut off his nose and ears while Kunjwa and Kail hit him with an axe; while in the later statement it was Somna who struck him.

Jwala Prasad J:-[After stating the facts his Lordship went on.]

The case of the prosecution is, therefore, not without suspicion. It is not a case in which it can be said that the opinion of the Assessors was perverse or that of the learned Judge who accepting that opinion acquitted the accused, and this Court will not interfere with a judgment of acquittal unless the lower Court has been perverse in its judgment or taken such unreasonable and distorted conclusions of the facts as to cause a miscarriage of justice. This has been established by a long course of decisions in this country; ride Empress v. Gayadin (1882) 4 All. 148; (1881) A.W.N. 159 and Deputy Superintendent v. Amulya Charan (1914) 18 C.W.N. 666; 15 Cri. L.J. 160; 22 I.C. 736. The observation of. Straight, J. in the first mentioned case fits in so well with the present case that I would conclude this judgment in the words of that learned Judge:-"It is not because a Judge or a Magistrate has taken a view of a case in which Government does not coincide, and has acquitted accused persons, that an appeal from his decision must necessarily prevail, or that this Court should be called upon to disturb the ordinary course of justice by putting in force the arbitrary powers conferred on it by section 272 (corresponding to section 417, Criminal Procedure Code). The doing so should be limited to those instances in which the lower Court has so obstinately blundered and gone wrong as to produce a result mischievous at once to the administration of justice and the interests of the public. We cannot say in the present case that the Sessions Judge so egregiously and foolishly erred in his conclusions, as to the accused that we should feel ourselves bound either to convict them or to order a new trial. The Assessors and the Sessions Judge had the witnesses before them and consequently the best opportunity of judging the truth. It is not said that they did not conduct the enquiry with carefulness and weighed the facts to the best of their ability. The reason that another Tribunal or other Judge might have arrived at a view other than that formed by the Assessors and the learned Judge in the present case is not the reason for disturbing the verdict of acquittal which appears to us to have been arrived upon the full consideration of the circumstances and evidence in the present case.

Agreeing, therefore, with the view expressed by my learned brother I dismiss this appeal.