Hari Gope and Others vs Emperor

Imam, J.—In these two appeals there are-seven appellants. All of them except Kali Gope have been convicted u/s 118, Penal Code, and sentenced to one year and a half rigorous-imprisonment. Kali Gope was convicted u/s 147, Penal Code, and sentenced to one year''s rigorous imprisonment. All the appellants except. Kali Gope were further convicted u/s 324/34 and sentenced to two years'' rigorous imprisonment for assaults on Ramdeo Gope and Tulach Gope. The appellant Ramkeshwar Gope was convicted u/s 302, Penal Code, for causing; the death of Kashi Gope and sentenced to transportation for life. The appellant Kali Gope was convicted u/s 325, Penal Code, for causing grievous hurt to Tulach Gope and sentenced to three years'' rigorous imprisonment. He was further convicted u/s 323 for an assault upon Ramdeo Gope, but no separate sentence was imposed upon him on this charge. All the sentences of imprisonment on all the appellants-were directed to run concurrently. (His Lordship narrated the facts of the case and set out the contentions of both the sides and in doing so-observed as follows:) It was further urged that the chaukidar Rampadarath Dusadh has not been examined by the prosecution and it was apparent on the face of the story given by the prosecution that he had come to the field and seen Tulach Gope in an injured condition and that he was preparing to take him to the thana when an attack took place by the accused persons and that he had witnessed the assault on Kashi Gope. The failure to examine this witness must be a circumstance from which an adverse inference against the prosecution should be drawn.

The question of possession of Plot No. 100 or plot No. 172 or any portion of the 10� bighas has come in for a good deal of discussion. As the prosecution story stands concerning the occurrence, it is really unnecessary to decide the question of possession. The discussion became relevant only for the purpose of investigating the issue as to whether there was any motive on the part of the appellants to cause a riot and commit murder. If the evidence of the prosecution, witnesses is in the main reliable regarding the substantial story as to the stages of the various assaults, then it was quite unimportant as to the motive which led the accused to commit the assault. (After discussing the evidence the judgment proceeds:) The witnesses did state that the accused were Objecting as to why Tulach Gope should cut the crop and this would only be because the accused party felt they had a right to that crop and that could only be consistent with the theory that the crop had been grown by them. I think it is well known in criminal trials that it is not necessary for the prosecution to prove motive for the occurrence so long as the evidence is clear and acceptable. The failure to prove a motive for the occurrence would not necessarily in all circumstances affect the merits of a case. Here in this case the prosecution had attempted to suggest a motive and the motive suggested by them does not appear to me to be unreasonable.

The non-examination of Padarath chaukidar has caused me a good deal of anxiety as to whether it would not be desirable to have this individual summoned to give evidence. It is said that he has been gained over. It is so easy to make the suggestion and consequently I examined his statement before the police in the diary and I am satisfied that a very important witness was not examined by the prosecution. It has to be remembered that a very serious charge of murder was pending against one of the appellants and it is, I think, the duty of the prosecutor, quite independent of the desires of the complainant or any one else, to place the evidence of a witness examined so early in the case as Padarath chaukidar was and who had seen a major portion of the occurrence and whose evidence was of the utmost importance regarding the identity of the murderer of Kashi Gope. I am not at all satisfied with the explanation offered that he has been gained over. There was no question at the time that he was examined by the police of his being gained over then. I can only refer to the case in Kunja Subudhi v. Emperor AIR 1929 Pat. 275 where Fazl Ali J. (as he then was) referred to the observations of Sir Lawrence Jenkins in Ram Ranjan Roy Vs. Emperor, :

The purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent not the police but the Crown and this duty should be discharged fairly and fearlessly and with a full sense of the responsibility attaching to his position.

Fazl Ali J. then went on to say:

It was also pointed out by that eminent Judge that in a capital case it is the duty of the Crown to place before the Court all materials irrespective of the question as to whether they help the accused or go against him, and it has been rightly observed that the rule is not merely a technical one but founded on common sense and humanity.

If I may say so respectfully, I entirely endorse these words. I do think it was entirely wrong for the prosecution not to have examined Padarath chaukidar. I am, however, also satisfied that no good purpose would be served now by examining him since a good deal of time has transpired since the occurrence and whatever benefit Ramkeshwar Gope may have received from his evidence with reference to the charge of murder, I am inclined to think that the examination of Padarath chaukidar at this stage might be adverse to the interests of the other appellants. (His Lordship after further discussing the evidence concluded.)

The appellant Remkeshwar Gope has been convicted for the murder of Kashi Gope. I think this appellant is entitled to say that since this fact was not mentioned in the first information report or in the earlier stages of the statements of witnesses examined during the police investigation, the benefit of the doubt should be given to him regarding the prosecution case that he was the murderer of Kashi Gope. Normally one would wonder as to why an individual should falsely accuse another of murder unless the allegation against that individual was true. It would be unreasonable for an individual to give up the real murderer and name another falsely unless the motive was very strong. The fact remains, however, that one cannot be too careful in considering evidence in a riot case, particularly when there is indication of some trouble in the village between this appellant and the gomasta. In this connection it becomes all the more important to keep in mind the importance of the omission on the part of Lachman Gope and his witnesses to name the appellant Ramkeshwar Gope as the assailant of Kashi Gope at the earlier stages of the police investigation. I think it would be reasonable to act with caution in such circumstances and I would give Ramkeshwar Gope the benefit of doubt with reference to this charge. I have considered his defence evidence of alibi and I think it must be rejected. Similarly the conviction of Kali Gope under Sections 325 and 323, Penal Code, must also fail as one does not find in the first information report that Kali Gope assaulted Tulach Gope or Ramdeo Gope. In the circumstances the conviction and sentence of Ramkeswar Gope u/s 302, Penal Code, is set aside. Similarly the conviction and sentence on Kali Gope u/s 325 is set aside. There is no separate sentence u/s 323, Penal Code, against him but the conviction is set aside. In other respects the conviction and sentence of the appellants under the other sections must be upheld. With this modification the appeals are dismissed.

Bennett, J.

I should like to express my own views on a matter mentioned by my learned brother which has arisen incidentally in these appeals. In criminal proceedings the prosecution are not concerned to prove the case of the particular complainant. It is their duty to place before the Court all the relevant facts and circumstances within their knowledge, whether for or against the accused, except those which it is reasonable to assume will be adduced in evidence by the defence if the defence wish to rely thereon. The primary duty of the criminal Court is to arrive at the truth and for that purpose to ensure so far as possible that all the available evidence is placed before it. It is mainly for this reason that the Court is authorised by Section 172, Criminal P.C., to peruse the case diary and by Section 540 of the Code to summon and examine any person as a witness in the case. These respective duties of the prosecutor and of the Court are fundamental to the proper administration of criminal justice.

In my opinion, in failing, to call the chaukidar Padarath in this case both the prosecutor and the Court failed signally to discharge their respective duties. The statements made by him to the police were such as could not in justice have been omitted from any impartial consideration of the charges against the appellant Ramkeshwar Gope. The prosecutor could not reasonably suppose that the defence would call this witness because although favourable in one respect to the appellant Ramkeshwar Gope, his statement in other respects was inimical towards him and to the other appellants. In these circumstances it was the bounden duty of the prosecution to call him as prosecution witness. I can only assume that the learned Judge did not read the case diary as I fail to understand, if he had read it, how he could have felt himself at liberty in his conscience to convict the accused without providing himself with the opportunity of considering the chaukidar''s evidence.

Subject to those observations and for the reasons given by my learned brother, I concur in the proposed order.