Carnddff, J.:— This case originally came before a Bench of two Judges by way of appeal and also for confirmation of the sentences of death passed upon the six Appellants on conviction of the murder of one Basdeo Singh and it has now been referred to me under sec. 429 of the Code of Criminal Procedure, 1898, in consequence of a difference of opinion between the two learned Judges, Stephen and Digambar Chatterjee, JJ. who constituted the Bench.

Basdeo Singh and the Appellants had long been at enmity and the enmity appears to have culminated in December 1911 in the prosecution for perjury of two of the latter, Mohadeo Mali and Girja Lal. The 25th March, 1912 was fixed for the defence in that case and the remaining four Appellants were witnesses cited on behalf of the accused in it. Accordingly on the morning of the day mentioned Basdeo set out on a bicycle from Darigaon for the Court at Sasseram and there can be no doubt as to his having been waylaid and murdered on the road near a village called Gharbari. It is equally beyond doubt that the Appellants had started from Darigaon before Basdeo and were also on their way to Sasseram where they were eventually all found and arrested after the murder. The case for the Crown is that they were Basdeo's assailants and the charge against them has been found by both the Sessions Judge and the Assessors to have been proved.

Two persons said to have been eyewitnesses of the crime were produced by the prosecution. The first was Brij Lochan Sahai, Basdeo's karpardaz, who followed Basdeo on a bicycle and swore that be arrived in time to see Mohadeo Mali cutting his master's throat while the other Appellants were holding him down. His evidence is I think, it must be conceded, supported at every turn by ample corroboration and if he really witnessed the occurrence and can be believed there is an end of the case. The other eye-witness was Musstt. Somaria, a woman who deposed that as she was returning to her home on the morning of the 25th March from a place called Lerna, she witnessed the attack from under a bridge on the road and the same may be said as to her testimony in respect of at least two of the Appellants, Mohadeo Mali and Autor Singh, whom she recognised and named at once. The question for decision therefore lies within a very narrow compass, for it resolves itself into one as to how far, if at all, these two persons are to be credited. The Sessions Judge, it may here be stated, discarded the evidence of Brij Lochan Sabai altogether and convictel on that of Musstt. Somaria while as regards the two assessors it is not apparent on whose testimony they relied in expressing the opinion that the guilt of all the Appellants had been established.

I will deal first with the evidence of Brij Lochan Sahai. According to himself he was about to start from the cutchery at Darigaon along with Basdeo but halted at the last moment in order to fetch a particular document which had been overlooked. The document was in a certain box and he seems to have had no difficulty in finding it. According to Radha Prosad, an Ameen in Basdeo's service and apparently a person of some education, Brij Lochan was delayed for only 7 or 8 minutes on this account. He was seen by Ramdhon Singh at Kasarwa, a mile from Darigaon, “a little way” behind Basdeo. Somewhat farther on he was, Sheo Lochan and Kesho Singh deposed, “15 or 20 bighas,” (i.e, from 600 to 800 yards) behind Basdeo and Mussamat Dhanwatia saw them both evidently close together near the scene of the occurrence. All of this evidence and much more that fits in with it the learned Sessions Judge has for reasons which seem to me to be not only very inadequate but throughout unsubstantial and unsound rejected and in the face of it he has arrived at the finding that Brij Lochan Sahai was half an hour later than Basdeo and consequently cannot have been an eye-witness. The point is one of crucial importance and it will be necessary for me to deal seriatim and at some length with the reasons which I have just alluded to and condemned.

At the outset the Sessions Judge refers to the first information given by Ramdhon Singh who has already been mentioned as having met Brij Lochan “a little way” behind Basdeo at Kasarwa and he points out that while it was there recorded that Ramdhon said that Brij Lochan followed Basdeo immediately (phauran), the words “half an hour” (adha ganta) are scored out before the adverb. He then finds and here I entirely agree with him and consider his argument unassailable that no suspicion attaches to the erasure and that, as explained by the recording Sub Inspector, Ramdhon at first said adha ganta and at once corrected himself. It is true no doubt that the word “phauran” occurs at the end of a line and that as pointed out by Chatlerjee, J., there are some other lines in which the last word is written further from the end but I think my learned brother must have overlooked the fact that in each of those instances the blank is fully filled up with a long dash and that if “phauran” be struck out of the first line that line becomes markedly different from every other line in the document. And the suggestion that the word was inserted separately on each of the carbon copies afterwards I find it difficult to grasp especially as it is in evidence that while the information was recorded after 11 o'clock the Sub-Divisional Magistrate's copy was actually in that officer's hands by mid-day. As I have said then, the Sessions Judge is certainly right in finding that the correction was made verbally by Ramdhon and in writing by the Sub-Inspector at the time. But when he goes on to declare that “he believes that the words Ramdhon first uttered were correct,” I am wholly unable to follow him. “To begin with,” he observes, “it is likely that Brij Lochan would have been delayed some time in finding the paper and would not have followed immediately”. That is so of course but the point is whether the interval of “some time” was 7 or 8 minutes as stated categorically by Radha Prosad or half an hour, and the probabilities as well as all the evidence seem to me to point to the accuracy of Radha Prosad's statement.

Then the learned Judge starts to argue in a circle by taking it as established that Ramdhon at first said and meant to say that Brij Lochan followed in half an hour and he thereupon proceeds to rely upon the cancelled statement in the first information as contradicting not only Ramdhon but the direct evidence to the contrary of all the other witnesses on the point. Now the first information is a document of great importance and it is in practice always and very rightly produced and proved in criminal trials. But it is not a piece of substantive evidence and it can be used only as a previous statement admissible to corroborate or contradict the author of it. The learned Sessions Judge has therefore here fallen into a very serious error and the error is one which seems to me to be at the foundation of and so to vitiate the whole of his reasoning.

Next the Sessions Judge remarks that if Brij Lochan arrived as close to the occurrence as he says, he would have heard some sound before he saw Basdeo's bicycle on the ground and would probably himself have been caught. These are but surmises and they ignore, first, the actual distance intervening which seems to have been anything from 75 to 150 yards and, secondly the story told by Brij Lochan and corroborated by others as to Brij Lochan's headlong flight after the occurrence when he was threatened by one of the murderers armed with a lathi.

Again the Sessions Judge's calculations as to various distances being shorter than others and the improbability of Brij Lochan having travelled less quickly on a bicycle than did some of the witnesses on foot lose sight of the fact that the latter were evidently running and probably running as fast as they could.

Finally the remark that even if Brij Lochan were an eye-witness it would not have been possible for the two witnesses Kesho and Sheo Lochan Duffadar to have arrived in time to see the accused persons running away seems to me to be based on nothing at all and to be irreconcilable with the circumstance very fully proved in my opinion that the duffadar almost then and there independently and of his own motion sent a chowkidar to lodge information at the thana and gave him the names of all the Appellants.

These are, I think, all the reasons indicated by the Sessions Judge and I think I have said enough to show that they are surprisingly erroneous from first to last. It follows that the finding based upon them cannot be accepted, for it is reduced to mere suspicion and surmise neither of which is to my mind justified by anything on the record. An effort has however been made to support it here on another ground connected with the first information and that I will now proceed to consider.

In the document referred to there are several erasures besides the one already noticed and among them on the first page will be observed the erasure of some words which are said to be “Girijlal wo” and we originally written before the word “Brij Lochan Sahai”. Aoart from the initial G and the small word at the end the obliteration is very imperfect and the remaining letters are clear. Ramdhon himself declares that although he had, as is indeed the case, just mentioned the accused Girja Lal in another connection he certainly did not mention him in this connection and the writer deposes that the words scored through are “Brij Lal Ko” which he wrote by mistake for “Brij Lochan Sahai” and at once struck out. Now I find it quite impossible to say whether the last word is “ko” or “wo,” for in the very unattractive Kaithi script used the two are up to be and are in fact elsewhere written exactly alike. As regards the first letter I have a difficulty in saying whether it is a G or a B but on the whole it strikes me as more like the former than the latter and in any case I propose to give the Appellants the benefit of the doubt and read the passage as “Girja Lal wo”. So read, it makes Ramdhon say that Basdeo told him to ask the Appellant Giija Lal and Brij Lochan to make haste and on this the following argument is raised.

Admittedly Girja Lal, one of the persons who was being prosecuted for perjury, had been aproaching Basdeo with a view to the compromise or wi hdrawal of the case against him and it would appear that Basdeo Lal had indicated that he was not unwilling to consider the matter. Basdeo evidently expected Girja Lal to accompany Brij Lochan and from this it follows that it had been arranged that all three were to go to Sasseram amicably together. Therefore Basdeo had come to terms with Girja Lal, the direct motive for the murder of the former at that particular juncture had in consequence ceased to exist and with it must go the basis of the whole case for the Crown. Further it is certain that Girja Lal did not keep his appointment. That being so, Brij Lochan must have waited for him for much more than 7 or 8 minutes and the Sessions Judge's finding that Brij Lochan followed after an interval of half an hour and too late to see anything is thus strengthened. The danger to be feared from the words thus put by Ramdhon into Basdeo's mouth was realised by Brij Lochan as soon as he heard them uttered on his arrival at the thana and he, with of course the connivance of the Police, had them obliterated.

This argument which Mr. Huq admits was never thought of until the Appellants put themselves into his able hands in this Court is ingenious but there are many difficulties in the way of allowing it to prevail. Ramdhon had, as already indicated, just mentioned Girja Lal by name, Brij Lochan appears (see the evidence of Dhanwatia) to have been occasionally called Brij Lal. The two names might well have been confused together and it requires no stretch of imagination to understand how easily a mistake may have been made either by Ramdhon or by the Sub Inspector in this connection. Moreover if this erasure had been deliberately made as suggested surely the words would have been obliterated much more carefully and completely. The Sub-Divisional Magistrate's copy of the first information reached him within the hour. There were a large number of people at the thana and considerable excitement at the time. It is difficult to believe that in these circumstances the alteration was dishonestly made in the interval and even Gurdeo Singh whose evidence was certainly not intended to help the prosecution evidently did no: hear the reference to Girja Lal as well as Brij Lochan. Then at most the question of compromise had been raised and left in the air, the quid pto quo not having been settled and it must indie J have been so for perjury is a non-compoundable offence and I do not myself understand how the prosecution could have been withdrawn or not pressed at the defence stage which had then been reached. Again it was Girja Lal who sought a favour. He was bound in any case to be in Sasseram at 11 o'clock in order to enter on his defence and it is not clear why Basdeo should have been anxious about his arrival in time to talk about a compromise which he (Girja) had wanted or why Brij Lochan should have wasted any time in waiting for Girja Lal. Finally there is nothing in the record to show that Girja Lal was expected to accompany Basdeo and Brij Lochan and as a matter of fact, as is clear from his own statement, Girja Lal did not do so but started from Darigaon along with the other Appellants independently and considerably earlier, before dawn in fact. The whole of the structure thus elaborately set up on behalf of the Appellants seems to me therefore to crumble to pieces as soon as it is touched and I am confirmed in the conclusion that the learned Sessions Judges finding that Brij Lochan Sahai was not an eye-witness is undoubtedly wrong.

I now come to consider Musstt. Somaria, the other eye-witness, upon whom the Sessions Judge has relied. Her evidence is assailed on the following grounds.

First, there is some doubt as to how she was discovered, the Sub-Inspector swearing that he got her name from Suba Singh and Suba Singh declaring that he did not know and could not therefore have given her name. The point is one to which I do not attach much importance for it seems to me to be very likely that the Sub-Inspector was making a mistake. The woman had gone about telling a number of people what she had seen and any one of them may have disclosed her name to the investigating police officer.

In the second place, it is pointed out and correctly that the police diary of the 25th March does not bear the stamp of the Inspector's office and was not despatched to head quarters until the 27th.

The suggestion is that Somaria was not examined on the 25th as alleged but at some time on the 26th. As regards this I agree with the learned Sessions Judge, in thinking that the explanation offered is sufficient and that there was no dishonest dealing in this connection. Indeed it would not, so far as I can see, have made an iota of difference had the woman not been examined till the 26th and there was therefore no object in taking the diary of the day before.

Thirdly, it is contended that the evidence of Somaria cannot, in the face of the Sub-Inspector's admission that she declared to him that she had recognised only Autor Singh and Mohadeo Mali, be regarded as of any value whatever against the other four Appellants and that if Brij Lochan's evidence be discarded the evidence left against these four is not sufficient to justify their conviction. In this I think that Mr. Huq is certainly right and the Sessions Judge was in my opinion wrong in convicting Mahdeo Kabar Mahdeo Sonar, Girja Lal and Dal Singar, Sonar after he had rejected the testimony of Brij Lochan.

Finally, there remains only the suggestion that the story as to Somaria's having gone to Lerna on a fruitless errand to purchase a goat which is put forward to explain he presence on the scene at the right moment is unworthy of credit. The story certainly does not strike me as a very convincing one but I do not think I can discard the woman's evidence on that account. As Mr. Justice Stephen has observed, there are, as the record stands, several questions in connection with this which may be more easily asked than answered but nothing to injure her credit is disclosed by the questions that were put to her in cross-examination and it would not be right to asume that she would have been unable to answer satisfactorily questions that were not put to her. Indeed I take the same view of the Mussamat's testimony as Mr. Justice Stephen and my conclusion is that it is a fair statement of what she actually observed, that it is direct evidence fully proving the charge against Autor Singh and Mohadeo Mali and that it affords very valuable corroboration of the evidence of Brij Lochan Sahai.

The result is that I agree with the Sessions Judge and the Assessors and feel no manner of doubt as to the guilt of all the Appellants and I dismiss their appeals. The question of sentence has however caused me much anxious thought. That the learned Sessions Judge was light in passing sentences of death in the first instance I have no hesitation in saying, but apart from the circumstance that one learned Judge of this Court has expressed himself as dissatisfied with the evidence I am oppressed by the feeling that the Appellants have through no fault of theirs had these capital sentences suspended over their heads for nearly six months. It is a fine point perhaps whether I sitting here as a Judge should pay any attention to this fact and whether I ought not to confine myself to considering the propriety of the sentences when originally passed leaving the rest to the executive Government. On the whole I think that as the law stands in India where the alternative penalties of death and transportation are prescribed for murder it is a matter for my consideration and that I ought not to confirm the death sentences unless I personally think that they ought to be carried out now. And I believe I am right in saying that delay such as this has before now been regarded by Judges as a sufficient reason for refraining from imposing the extreme penalty. In this view I will not confirm the sentences of death but direct that they be altered into sentences of transportation for life.

Appeal dismissed:

Sentences transmuted.