Imam, J.:— In these two appeals there are seven appellants. All of them except Kali Gope have been convicted under section 148 of the Penal Code and sentenced to ones year and a half rigorous imprisonment. Kali Gope was convicted under section 147 of the Penal Code and sentenced to one year's rigorous imprisonment. All the appellants except Kali Gope were further convicted under section 324/34 and sentenced to two years' rigorous imprisonment for assaults on Ramdeo Gope and Tulach Gope. The appellant Ramkeshwar Gope was convicted under section 302 of the Penal Code for causing the death of Kashi Gope and sentenced to transportation for life. The appellant Kali Gope was convicted under section 325 of the Penal Code for causing, grievous hurt to Tulach Gope and sentenced to three years' rigorous imprisonment. He was further convicted under section 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.

According to the prosecution in Assar of 1944, 10½ bighas of land in village Jagdishpur were verbally settled with prosecution witness Tulach, Gope and on this land Tulach Gope grew the crop which was partly harvested on the 6th December, 1944, the day of occurrence. Previous to the occurrence, however, there had been a permanent settlement of these 10½ bighas under a written document dated the 2nd November, 1944, on payment of nazarana and annual rent at a fixed amount. Out of these 10½ bighas settled with Tulach Gope, 9 bighas originally belonged to the appellant Sukhdeo Gope and one bigha to the appellants Ramkeshwar Gope and Sahudayal Gope who are brothers. About 10 kathas belonged to one Bhangi. According to the evidence, Ramkeshwar Gope and his brother Sahudayal Gope fell into arrears of rent and were sued by the landlord who obtained a rent decree against them and after execution of the decree obtained delivery of possession somewhere in 1936. Sukhdeo and Bhangi also appear to have defaulted in the payment of rent and were sued by the landlord who obtained delivery of possession of Sukhdeo's land about the middle of April, 1943, in execution of his rent decree. On the day of occurrence, namely, 6th December, 1944, from early morning harvesting of paddy had begun on a portion of the land of the bighas settled with Tulach Gope and by noon some 22 bundles of crop were removed to the Kkalian. Thereafter at about 3 p.m, Tulach Gopes went to the harvested portion of the land to graze his buffaloes thereon when the appellants Keshwar rope, Sahudayal Gope, Hari Gope, Kali Gope, Deodutt Gope, Deokichand Gope and Sukhdeo Gope arrived armed with deadly weapons such as pharsas, swords and bhalas. They began to assault Tulach Gope because he had cut the paddy. This assault was witnessed, by Lachman Gope, P.W Ramdeo Gope P.W 5, Kuldip Gope P.W 6, Mohit Gope P.W and the deceased Kashi Gope who came to the place where Tulrch Gope had been assaulted. The assailants thereupon ran away and stood near the outhouse of the appellant Ramkeshwar Gope. Arrangements were made for a khatia to take Tulach Gope to the thana, while the deceased Kashi Gope went to village Siniri to fetch the chaulcidar one Padarath Dusadh. Thereafter the injured Tulach Gope was being taken towards the thana and when the party reached near the pipul tree on a chhour the appellants again attacked them and the complainants' party dispersed in various directions Ramdeo went towards the south-west and was assaulted in a field marked B on the map, whereas Kashi Gope ran towards the north and at some 60 to 70 paces from the pipul tree at point D on the map he was pierced in the chest by the appellant Ramkeshwar Gope, dying almost instantaneously. Lachan Gope who ultimately went to the thana to lodge the first information report states that he could not leave immediately for the police-station owing to the accused party surrounding the house. He ultimately left for the thana where lie arrived somewhere near 2 A.M, when the first information was lodged. The Sub-Inspector went to the spot and found marks of blood at the places pointed out to him where the assaults upon Tulach Gope, Ramdeo and Kashi Gope are said to have taken place. He also found a portion of plot no. 100 harvested, and the crop of plot no. 172 trampled but not grazed.

According to the defence Ramkeshwar was not present in the village on the day of occurrence but elsewhere and he has led evidence in support of his plea of alibi. As far as I have been able to appreciate the defence argument in this Court, it is in substance this that none of the appellants had claimed any portion of the 10½ bighas settled with Tulach Gope and they were not interested as to who cut the crop, but that they have been falsely implicated owing to enmities existing between them and certain persons in the locality. Ramkeshwar and his brother Sahudajal lay the blame at the door of the gomasta of the landlord Ramcharitar Singh P.W 9 and the other appellants seemed to suggest that they were the victims of the enmity of the landlord of village Barimal. It is, said that when none of the appellants laid any claim, to the land in question, nor had they ever applied for resettlement of the lands with them, there was no reason why they, should have gone to the place at all to commit not and cause serious assaults upon persons who had done them no wrong what appears to have happened, according to the defence, is that after the delivery of possession of these lands to the landlord, the gomasta the village used to settle them in batai to various persons and it may be that the occurrence which ultimately took place was between those bataidars and the new settlee; namely, Tulach Gope. It was urged that according to the evidence of the prosecution witnesses a verbal settlement took place in Assar of 1944, but the cross-examination of the witnesses would show that they had little or no knowledge of the lands, could give few or no details about, the manner of cultivation of the lands; neither do they appear to have had labourers to till the lands. From all these circumstances it is urged that there could have been no verbal settlement in Assar, whatever the settlement may have been in November, 1944. The crop which was standing on the land fit for harvesting must have been, the result of sowing log before the 2nd of November when the settlement by a written document was made with Tulach and it is well known that paddy harvested in December must have been sown somewhere after the middle of June. If there was no verbal settlement with Tulach Gope in Assar, then the crop must have been grown by someone else and as the lands are usually settled with bataidars by the landlord, in all likelihood the crop standing in December, 1944, was grown by some bataidar and it was that bataidar who objected to Tulach Gope harvesting the crop and who took part in the occurrence. It was further urged that Ramkeshwar Gope ought not to be convicted on the charge of murder as in the first information report there was no mention of the fact that he had either chased Kashi Gope or pierced him with a bhala and that it would appear that at the earlier stages of the investigation most of the prosecution witnesses failed to mention to the police that it was Ramkeshwar Gope who had pierced Kashi Gope in the chest with a bhala. Similarly on behalf of the appellant Kali Gope it has been pointed out that in the first information it was not stated that he had assaulted Tulach Gope or Ramdeo Gope. 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 10½, 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 not 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. A careful examination of the details of the plots comprised in the 10½ bighas with the plots mentioned in the writ of delivery of possession, there can be no doubt that a very substantial portion of the 10½ biglias of land at one time belonged to Sukhdeo Gope and at least a plot, if not two described as 102/172 in the writ of delivery of possession with reference to Ramkeshwar Gope are also to be found in the document settling the 10½ bighas with Tulach Gope. Therefore to that extent the evidence of the prosecution witnesses that the 10½ bighas of land at one time belonged to Ramkeshwar Gope and Sukhdeo Gope appears to be true. Lachman Gope the son of Kashi Gope has frankly stated that there had never been any dispute or quarrel over the lands between him and his party and the appellants before the occurrence. From this statement of his it has been urged with much emphasis that as none of the appellants were in possession of the lands which had been delivered to the landlord so long ago, before the occurrence and that there had never been any quarrel or dispute about it, the story of the prosecution that the appellants came to create trouble that day must be false. Whatever happened may have happened with somebody else. I am personally not inclined to readily accept Lachman's statement or the witnesses who say that there had been a verbal settlement of the land in Assar of 1944. The probability is that Sukhdeo Gope continued to be in possession of that portion of the 10½ bighas which originally belonged to him as a bataidar though on the face of it there is no direct evidence to this effect. It has to be remembered, however, that the delivery of possession with reference to Sukhdeo's land was somewhere about the middle of April, 1943, and the new agricultural operations would commence very shortly after that delivery of possession for paddy to be ready for harvesting in December. The gomasta has plainly indicated in his evidence that there is a practice to settle bakasht lands in the village on batai, but it is significant that at no stage of his evidence has he ever said that Sukhdeo was never in possession of the land the possession of which was delivered to the landlord in April, 1943. It is significant that in the case of Ramkeshwar Gope, he does say that there had been a settlement of 24 bighas of land and he makes the important statement that some of these lands included the khatiani lands as well which had become bakasht on account of the auction sale and I would not be surprised, therefore, that the statement of the prosecution witnesses that out of the 1½ bighas settled with Tulach Gope one bigha was the land which originally belonged to Ramkeshwar Gope is true. It seems to me that Sukhdeo Gope most likely did not give up-possession not in defiance of the landlord but accepted the position of a bataidar. This may be pure speculation, but I do not think that we are anywhere in the realm of speculation so far as Ramkeshwar Gope is concerned, in that the gomasta states that 24 bighas of land settled with Ramkeshwar contained some khatiani land which had become bakasht as a result of the auction sale which must obviously refer to some of the lands which had, been the subject of delivery of possession in 1936. On the other hand, there seems to have been no reason why Sukhdeo Gope should not have been allowed to cultivate the land on batai system and it seems to the that it was Sukhdeo Gope who had grown the crop so far as it related to his 9 bighas which was being harvested on the day of occurrence and it may well be that the crop on one bigha out of the 10½ bighas was also grown by Ramkeshwar Gope. The written settlement giving the status of a tenant of these lands to Tulach Gope must have indicated to Ramkeshwar Gope and Sukhdeo Gope that they could have no more hope of cultivating these lands as bataidar and that it was going out of their possession permanently to Tulach Gope; but at the time the crop on the land had been grown by them was still standing and they may have felt that whatever the settlement with Tulach Gope, he certainly had no right to cut that crop. Here again it may be that one is speculating; but the circumstances in the case seem to be consistent with such a speculation and in my opinion the prosecution evidence that the appellants participated in the not should not be discarded simply because it may not have been specifically proved that the appellants were in possession of the lands where the harvesting had taken place. The witnesses did state that the accused were objecting as to why Tulach Gope should cut the crop because the accused party felt they had a right to that crop and this could smly 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 the 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 mportance 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 of Kunja Subudhi v. King-Emperor*, J. (as he then was) referred to the observations of Sir Lawrence Jenkins in the case of Ram Ranjan Roy v. King-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.

The circumstance of the finding of blood at the three spots A, B and D by the Sub-Inspector clearly indicates three separate assaults at three places and the assaults could not have been caused at the same time when an attempt was being made to harvest any crop at 3 P.M It seems to me that whatever the criticism regarding the grazing story may be, Tulach Gope certainly appeared at about 3 P.M and was promptly beaten up for what had happened in the morning. It may be that he had gone ahead and when his other companions were arriving the assailants of Tulach Gope went away to the outhouse of Ramkeshwar Gope. There can be no doubt on the evidence that Kashi Gope did go to fetch the chaukidar Padarath Dusadh and this could only be with a view to taking his assistance in carrying Tulach Gope to the police-station. We know from the injuries upon Tulach Gope that he had received numerous blows and his condition was considered sufficiently precarious to justify his dying declaration being recorded. Therefore the evidence of the prosecution witnesses that they wished to take Tulach Gope to the police-station seems acceptable having regard to the serious condition in which he was as a result of the assault upon him and I see nothing improbable in the evidence that the assailants of Tulach Gope and their companions wished to prevent Tulach Gope from being taken to the police-station, for it must have been present in their minds that a serious case of not would be instituted against them. Then the directions taken by those who were flying away from their assailants, namely, Ramdeo to the south-west and Kashi to the north indicate that there had been an attack upon these men and they sought to escape from their assailants in whatever direction they could find an opening resulting in these two persons running in different directions. That there were marks of trampling in plot no. 172 where Tulach Gope was assaulted indicates a gathering of several persons there, and the marks of trampling found by the Sub-Inspector in the field at the point B on the map where Ramdeo was assaulted also indicates that several persons surrounded Ramdeo there. The circumstantial evidence, therefore, is consistent with the prosecution evidence and in my opinion corroborative of that evidence. I would accordingly hold that the prosecution case as to the various stages of the assault upon these three men is substantially true.

As to the individual cases of the appellants, I think there can be no doubt that the evidence of identification is sufficient and it must be held that all the appellants took part in the riot. A special argument had been made with reference to the appellant Deodutt Gope, namely, that his name had not been mentioned in the first information report. Lachman Gope the first informant, however, has said that the son-in-law of Manikchand was amongst the rioters. There is no doubt that Deodutt Gope is the son-in-law of Manikchand. Lachman Gope explained that for the moment he had forgotten this appellant's name. It may at first sight appear to be strange that Lachman Gope who had known this appellant for some time forgot his name. On the other hand, when he took the trouble to mention that a son-in-law of Manikchand was amongst the rioters there seems to be no good ground for rejecting his explanation as it was quite easy for him to have mentioned Deodutt Gope by name particularly when he was thinking of the son-in-law of Manikchand. Indeed the first information report read as a whole gives one the impression that it was the statement made by a man who did not appear to have been tutored. It is true that from the time of the occurrence until the lodging of the first information considerable time transpired and the gomasta Ram Charitar Singh P.W 9 may have some ill-feeling towards some of the appellants; but it does not appear to me that, at any rate, at this stage he played any important part, as to the action which should be taken by Lachman. The first information report does not mention details of assault by any one. If the gomasta had really been at this stage interested against any of the accused, it seems to me highly improbable that he would not have impressed upon Lachman Gope to give details with reference to the assault and the names of the assailants of Tulach Gope, Ramdeo and Kashi. It may well be that after the occurrence Lachman Gope was somewhat afraid to proceed to the police-station and when he did reach the police-station he gave a very short account of what had happened and in that state of mind he might well have forgotten the name of Manikchand's son-in-law. The evidence against Deodutt, however, is convincing and completely sufficient.

The appellant Ramkeshwar 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 not 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 of the 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 Ramkeshwar Gope under section 302 of the Penal Code is set aside. Similarly the conviction and sentence on Kali Gope under section 325 is set aside. There is no separate sentence under section 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 authorized by section 172 of the Code of Criminal Procedure 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.

K.D

Order accordingly.