Jenkins, C.J:— Ram Ranjan Ray, a zamindar in the Bankura District, Umesh Chandra Mookerjee, one of his gomastas, and Madhub Mistri, his up-country peon, have been charged with offences which resulted in the death of Dhan Kristo Laik and his nephew Bunwari Laik, tenants of Ram Ranjan. The charges against Ram Ranjan were that he on or about the 18th of March 1914 at Dejuri committed murder of Dhan Kristo Laik by striking him with a lathi and thereby killing him, and also that he committed murder of Bunwari Laik by being present and abetting Madhub Mistri in striking and thereby killing him. Umesh Chandra Mookerjee was also charged with the murder of Bunwari by being present and abetting Madhub. The charge against Madhub Mistri was that he murdered Bunwari, and that he caused simple hurt to Hari Laik.

Umesh has been acquitted. Ram Ranjan has been acquitted of the murder of Dhan Kristo, but convicted of the murder of Bunwari by being present and abetting Madhub Mistri, and Madhub Mistri has been convicted of both the offences with which he was charged.

The sentence in each case has been transportation for life. Ram Ranjan and Madhub have appealed, but no appeal has been preferred by the direction of the Local Government.

We therefore have to assume that Ram Ranjan was not guilty of the murder of Dhan Kristo or of any offence against him of a lesser degree.

I will here state the broad features of the case for the prosecution, largely borrowing for that purpose from the first information as contained in Ex. I.

Ram Ranjan on the 6th of March came to his village of Dejuri and put up at the Durga Mela. He was anxious to secure his tenants' assent to an enhancement of their rents, and sent for some of them with a view to discussing the matter. The zamindar's demands were resisted, and ultimately on the 8th of March he summoned Bunwari through Madhub Mistri to whom I will in future refer as the nagdi.

Bunwari was taken to the Durga Mela and detained there. What followed is thus described in the first information. As he (that is, Ram Ranjan) was having him (that is, Bunwari) assaulted by the aforesaid nagdi for his not agreeing to pay rent at an enhanced rate, Dhan Kristo Laik went to Ram Ranjan Baboo and said “yesterday you brought away a he goat and have kept it tied, and to-day why are you having my nephew assaulted by the nagdi?” On this Ram Ranjan Baboo and Umesh Mookerjee gave orders to the up-country nagdi saying mar salako, whereupon nagdi wounded Bunwari Laik by kicking him first and then striking him with a lathi on the head. Ram Ranjan Baboo has caused grievous hurt to my uncle Dhan Kristo Laik by striking him on the head with the lathi which was in his hand. The wounds on Bunwari Laik and Dhan Kristo Laik are serious. There is no hope of their lives.”

Besides the Appellants and Dhan Kristo and Bunwari, there were in the Durga Mela at this time Umesh Chandra Mookerjee, Gosto Chatterjee; and Ramanath Roy, all gomastas of the zamindar.

Even on the case for the prosecution the conviction of Ram Ranjan for murder under sec. 302 of the Indian Penal Code, read with sec. 114, cannot stand for the simple reason that the only abetment charged necessarily required the presence of Ram Ranjan, while to come within sec. 114 the abetment must be complete apart from the presence of the abettor. This was recognised by Mr. Donogh who has appeared on behalf of the Crown and he conceded that all he could ask for was a conviction of abetment of murder under sec. 109.

We must therefore see whether the evidence would justify a conviction of Ram Ranjan under that section.

At the outset we are confronted with a serious difficulty by reason of the way in which this case was conducted before the Sessions Court. Gosto Chatterjee and Ramanath Roy were admittedly eye-witnesses of the occurrence and yet the Public Prosecutor did not call them as witnesses, notwithstanding repeated requests by Mr. Norton.

The Public Prosecutor cannot shelter himself behind the suggestion that he was able to form an opinion from evidence previously given that these men would not be truthful witnesses; for they were not even examined before the Committing Magistrate.

Mr. Donogh contended that the prosecution even in a case of murder was only bound to call witnesses “in their favour,” and for this he relied on a remark attributed to Sir Arthur Wilson in the report of In re Dhunno Kazi. But this remark appeared to me so opposed to the established rule and also to the whole trend of the judgment that I examined the original record and there found that the words used by the learned Judge was not “favour” but “power” and this is how the judgment is reported in 10 C.L.R 151. Obviously therefore Sir Arthur Wilson's authority cannot be invoked in favour of the prosecution's contention, and if, as we have been told, the conduct of the Public Prosecutor is in accordance with the general mofussil practice, the sooner that practice is stopped the better. The practice, if it exists, rests on a fundamental misconception of the purpose of a criminal trial and the duty of a Public Prosecutor.

That purpose 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 by him fairly and fearlessly and with a full sense of the responsibility that attaches to his position. The guilt or innocence of the accused is to be determined by the tribunals appointed by law and not according to the tastes of any one else.

It was therefore undoubtedly the duty of the Public Prosecutor in a capital case like the present to have placed before the Trial Court the testimony of all available eyewitnesses. This duty is clearly illustrated by the case of Reg v. Holden where in a murder trial counsel for the prosecution did not propose to call an eyewitness because she was brought to Court by the defence. On that the presiding Judge remarked, “She ought to be called. She was present at the transaction. Every witness who was present at a transaction of this sort ought to be called, and even if they give different accounts, it is fit that the jury should have their evidence so as to draw their own conclusion as to the real truth of the matter.” This is no technical rule: it is founded on common sense and is dictated by humanity.

The omission of the Public Prosecutor has involved this case as it comes before us in what Mr. Donogh on behalf of the Crown has very justly described as mystery. Indeed he felt this mystery to be so embarrassing that he asked for a re-trial or at any rate for an examination of the witnesses that had not been called. But having regard to the time already occupied by the case and the expenditure incurred this was opposed and reasonably opposed by the defence, and we must therefore dispose of the case on the record as it stands.

The sequence of events as described by the prosecution is improbable and unnatural and hardly accords with the connected actions of responsible human beings. There is obviously something kept back, something Omitted which is required to link up the narrative, and to present a reasonable and connected picture of what occurred.

The papers before us however disclose the description by Gosto and Ramanath shortly after the event, and it is a description that acquires some value from its correspondence with the story told by Ram Ranjan in his first information, and the statement made by the nagdi to the Magistrate on the 9th. Correspondence of this class may be attributed to concoction but in estimating the probability of this it has to be borne in mind that Gosto and Ramanath did not escape with Ram Ranjan but were kept prisoners by the villagers and that even when Ram Ranjan and Umesh were brought to Dejuri where Gosto and Ramanath were, they, were throughout kept first under police observation and then, under arrest.

There was therefore no opportunity of concoction except in the presence and with the knowledge of the police, and the evidence discloses no such concoction. Nor is the opportunity of concoction in the case of the nagdi obvious if regard he had to the statements of the Goalas, who were also kept back, and, in my opinion, wrongly kept back by the prosecution. The importance of the story thus told by the defence is that it unmistakably points to an angry irruption of the villagers into the Durga Mela.

If this be true the whole story takes a natural shape, and the improbabilities are smoothed out. Nor is there any unlikelihood in this story: on the contrary the record, with all its imperfections, discloses much that points in the direction of its truth, and supports the idea of an irruption and consequent scuffle and exchange of blows. Thus one of the prosecution witnesses says there were villagers outside the Durga Mela before the occurrence. When the place was searched a lathi was found, and there is no suggestion that it belonged to the accused's party: there were indications of disturbance in the Durga Mela: there were injuries on the nagdi which both assessors think, and in my opinion rightly, were genuine and these injuries are suggestive of an attack on him with a lathi.

These matters may not alone amount to proof of an irruption and scuffle but they certainly encourage, the idea that the whole story has not been placed before us, and justify, the application here of the view expressed by Sir Arthur Wilson in Dhunno Kazi's case that where witnesses are not called without sufficient reason being shown the Court may properly draw an inference adverse to the prosecution.

I certainly infer that the prosecution has not placed before us a complete picture of what occurred, but has withheld that which would have been favourable to the accused. I do not suggest that the prosecution story is wholly false: far from it.

Thus I am convinced that it was a blow delivered by the nagdi that caused Bunwari's death, but I am far from satisfied that the prosecution have placed before us the circumstances that immediately led up to this fatal blow.

It may be that Dhan Kristo addressed the zamindar in terms which were regarded as impertinent, and that this village magnate called out maro salako or some such offensive and provocative expression. But I cannot for a moment suppose that he meant thereby to instigate the murder of his tenant, nor can I believe that the nagdi to whom it was addressed so understood it. A cuff, a blow, or a kick was all that can have been intended, and curiously enough in the first information of the villagers it is said that after the zamindar so called out, the nagdi kicked Bunwari first and not until after this struck him with the lathi. It is true that the villager who gave this information showed an anxiety to correct it when he came to give evidence. I wholly distrust this correction; it is unlikely that the head constable would write down an expression of that kind if it was not said to him, and though his statement was read to him at the time, the villager did not then perceive the error upon which he promptly fastened in the witness-box without any apparent aid.

It is possible that more astute minds than his realised that those words might help to save Ram Ranjan and Umesh from the gallows, and that they should be explained away. It is intelligible that the villagers, already exasperated by the highhanded action of the zamindar, went to their companion's aid when they heard the zamindar's order and saw the kick. If there was an irruption of villagers this would be the probable sequence of events, and the treatment of the case by the Public Prosecutor has made it impossible for us to hold with the assurance requisite on a capital charge that this did not occur.

I wish to say nothing in palliation of the zamindar's conduct or of his exclamation, if in truth it was uttered by him, but I am unable on the record as it stands to hold him guilty of instigating Bunwari's murder or even the lathi blow which caused Bunwari's death.

Even if it be assumed that Ram Ranjan uttered the exclamation attributed to him the only natural consequence of that was the kick described in the first information. That might have amounted to an offence but no charge has been made in respect of it. In the circumstances therefore we have no option but to acquit Ram Ranjan, but it may be hoped that his experience of the 8th of March will teach him the danger of having in his train a man armed with a deadly weapon when he is dealing with his tenants: for though he is not proved to be legally responsible for the crime, I can hardly suppose him to be so callous as to contemplate without some remorse his association with the killing of two of his villagers. The nagdi is proved to have inflicted the blow of which Bunwari died, but I do not think the case justifies a conviction under sec. 302. At the same time the defence has not been able to establish a plea of private defence justifying what he did. We therefore convict him under sec. 304 and pass on him a sentence of 7 years' rigorous imprisonment. The appeal in respect of the offence on Hari fails, but the sentences will run concurrently.

Mr. Norton has told us of the fairness with which the Sessions Judge placed materials at his disposal for the purpose of the defence. This is as it should be, and I am further gratified with the treatment by the learned Judge of the Assessors as disclosed by the record, and his careful and conscientious use of their experience. It is much to be commended and presents a pleasing contrast with the treatment of Assessors which has sometimes come under my notice in other cases.