Emperor vs Suar Gola

Luby, J.—This is a reference u/s 307, Criminal P.C., by the Additional Sessions Judge of Patna, regarding the unanimous verdict of "not guilty" given by a jury in Sessions Trial No. 9 of 1934, "King Emperor v. Suar Gola, accused, u/s 436, Penal Code." The charge framed against Suar Gola was u/s 436, Penal Code, that on 3rd November 1933, at Painathi, P.S. Maner, he committed mischief by fire intending to cause the destruction of a tari shop belonging to Dalchand Pasi. The offence was said to have been committed 1� pahars after sunset.

There was only one eye-witness, Jhapsi Dusadh. He claimed to have seen Suar setting fire to the hut, to have pursued Suar for about half-a-mile, and to have caught Suar in a field containing Masuria Jinora crop with the assistance of Ramchander Dusadh. It is alleged that after capturing Suar they took him to the landlord, who lent a rope for tying the prisoner and told them to take Suar to the police station. Then they went to the police station, picking up the chaukidar Ramkishun on the way. At the police station a police constable told them to guard the prisoner for the rest of the night because he did not like to rouse the Sub-Inspector at 1 a. m. While waiting at the police station, they fell asleep and Suar made good his escape. Next morning at 5-30 a. m., the complainant Dalchand lodged a "first information report" and investigation was started. Suar was not to be found, though proclamation and warrant of attachment were issued against him. After the Magistrate had been recording evidence u/s 512, Civil P.C., Suar surrendered in Court on 9th January 1934.

The case was supported in Court by the evidence of Dalchand complainant, Jhapsi and Ramchander, and certain other villagers who claimed to have seen Suar in custody. The landlord deposed that Suar was brought to him at about 10 p. m., and was charged with arson. The chaukidar deposed that he went with Suar Dusadh and others to the police station that night. But the constable did not support the prosecution case, and averred that he did not see Suar or any of the villagers at the police station till the early morning. Accused Suar pleaded not guilty and said that the case was false and concocted on account of previous enmity. When asked about the enmity, he said that it arose out of damage done by his cattle to the crops of the prosecution witnesses. As regards the alleged absconding, he said that he had gone to Gaya and then to Purulia in order to sell a cow.

Two defence witnesses--both Goalas of another village in another thana--deposed that they went together to Gaya: Suar joined them on way and subsequently proceeded with one of them to Purulia and stayed one and a half months there. The learned Additional Sessions Judge has referred the case to this Court on the ground that the verdict of the jury is perverse and that a reference is necessary for the ends of justice. His reasons for making the reference are as follows:

There is no reason why the prosecution witnesses would give false evidence against the accused. And when the evidence is believed that the accused was chased, caught and taken to the thana, his presence at the time and place of occurrence at night away from his own village Kandhauli in the neighbourhood of Painathi together with his flight is a circumstance which, apart from the evidence of the eye-witness Jhapsi Dusadh, strongly points to his guilt. To this is to be added the circumstance that he was absconding for about two months and a quarter. All these taken together leave no doubt that the accused set fire to the shop.

The jurors have perhaps attached undue weight to the minor contradictions and to the denial of the constable Ram Chhabila Thakur (P.W. 14), that he saw the accused and the Chaukidar and his party at the thana at night before 4 a. m. and to the statement of the Chaukidar in his cross-examination that he was in village Painathi at 10 to 11 p. m. on the night of the occurrence. The constable appears to have made this denial falsely in order to save himself from punishment for not awakening the Sub-Inspector as soon as the Chaukidar reached the thana with the accused. And the Chaukidar appears to have made the statement falsely in order to save himself from responsibility for not going his round of duty in the village.

As I have mentioned above, there is only one witness who professes to have been an eye-witness of the arson. So if that witness (Jhapsi, is not believed, all the rest of the evidence goes for nothing) It is not beyond the bounds of possibility that Jhapsi may have made a bona fide mistake in seizing upon Suar Gola as the culprit. It is in evidence that he saw the commission of arson from some distance, and pursued his man for about half a mile across country through crops. He must have lost sight of the fugitive every now and then. And if at any time he and Ramchander lost sight of the fugitive while passing through any thick crop, they might make the mistake of catching some innocent passer-by as the culprit when they emerged from the other side. Suar''s presence is considered by the learned Judge to be a circumstance strongly pointing to Suar''s guilt.

But this is not a fair conclusion. Suar''s village is only a mile away from Painathi, and the hour was not very late. He might have been out in the fields at that hour for some quite innocent purpose. And if Suar was chased after being mistaken for the real culprit, he would naturally try to run away and no adverse conclusion can be drawn from his attempted flight. Then the learned Judge has thought that absconding for about two months and a quarter is another circumstance pointing strongly to Suar''s guilt. One must agree that Suar''s story of having gone so far afield as Gaya and Purulia in order to sell a cow does not carry conviction, But even if it be held that Suar absconded in order to escape arrest, that should not be counted against him, because it has been held that the old maxim "fatetur facinus qui judicium fugitis" is not to be applied in India: vide the ruling found at Ahmad v. Emperor, 1915 Lah 106.

Then the learned Judge has suggested that the jurors have attached undue weight to minor contradictions. The Judge told the jury that in his opinion the contradictions were insignificant. But apparently the jurymen preferred to rely upon their own judgment in this matter. And I am not prepared to say that they were wrong. There are some curious contradictions and discrepancies in the evidence which seem to indicate that the whole truth was not placed before the Court. Thus Somaru Pasi P.W. 3, deposed that Suar had never drunk toddy in his shop before that day; but Hunja Gopa, P.W. 7, deposed that he and Suar had drunk toddy together in Dalchand''s shop on several previous occasions. Then the landlord, P.W. 12, deposed that he had never seen Suar before the night of occurrence; but Somaru deposed that Suar used to be the cartman of his (Somaru''s) landlord.

The Police Constable was not examined for the prosecution, but only tendered, after the cross-examination had begun, the Public Prosecutor wanted to declare the witness hostile and to cross-examine him, and this was permitted. This procedure was somewhat unusual. It did not transpire what statement had been made by the constable to the investigating Sub-Inspector, so the justification for declaring the witness hostile is not apparent. Nor has the learned Judge given any reason for the grant of this indulgence. The discretion allowed by Section 154, Evidence Act, should not be exercised without sufficient reason, and the reason should be stated; because

by offering a witness, a party is held to recommend him as worthy of credence, and so it is not in general open to him to test the witness''s credit or impeach his truthfulness.

On a reference u/s 307, Criminal P.C., this Court is to consider the whole of the evidence and to give due weight to the opinion of the Judge and also to the opinion of the jury. The present case is a very simple one and everything depends upon the question whether the evidence of the solitary eye-witness, Jhapsi, is to be believed or not. This was a question which the jurymen were fully qualified to decide; and in the absence of any complications there was nothing to prevent them from deciding it correctly.

The learned Judge did not put any questions to the foreman with a view to ascertaining the reasons for the verdict, as he might have done (vide the ruling found at Emperor v. Surnamoyee Biswas 1914 Cal 65) So we do not know whether the jurymen disbelieved the whole story of the arrest and escape, or only felt some doubt accepting Jhapsi''s uncorroborated evidence.

As I have endeavoured to show, there were certain curious contradictions and discrepancies in the evidence adduced for the prosecution.

The jurymen had a right to weigh those contradictions and discrepancies, and if they felt that Jhapsi''s evidence alone was not sufficient to support a conviction, they acted quite rightly in returning the verdict of "not guilty." In my opinion there is nothing to show that the verdict is perverse or patently wrong or in defiance of the probabilities of the case. So I do not consider that there is any sufficient ground for setting it aside. I would therefore reject the reference and acquit Suar Gola on the charge framed u/s 436, Penal Code.

Mohammad Noor, J.

I agree.