Malik, J.:— One Dildil Pande was murdered on the evening of 18-10-1945, at a place called Patengra Nala in Bindhyachal. Nine persons were committed to the Court of Session to stand their trial under S. 148 and 302 read with Ss. 84 and 149 Penal Code. Eight of them were acquitted by the learned Sessions Judge of Mirzapur. The appellant, Makund Lal, was convicted and sentenced to death. Makund Lal has filed this appeal, and the learned Sessions Judge has sent the record to this Court for the-confirmation of the sentence of death.
2. Learned counsel for Makund Lal has argued that there is no motive for the murder and that there was no sufficient evidence to justify the conviction. The motive suggested on behalf of the prosecution is enmity. It is said that one and a half year before this incident a not had taken place in Bindhyachal, and the deceased Dildil and a few others were prosecuted at the instance of Gulab Chand, Jhinguri Lal, Kali Prasad and Babu Nandan. The case was ultimately compounded, but the incident is relied upon to prove enmity. It will be noticed that the appellant was not one of the complainants, but it is said that he belongs to the party of the complainants who were among the accused in the Court below but were acquitted by the learned Sessions Judge.
3. The other incident relied upon is a litigation four and a half years before the incident. Lal Behari, father of Mohan, another accused who was acquitted by the learned Sessions Judge, had started some criminal case against Dildil, but the case failed. The appellant was not a party to this case either. These two incidents, therefore, cannot provide any sufficient motive for the premeditated and brutal murder which was committed on 18th October. The last ground for enmity suggested was business rivalry. There is, however, evidence that there are about five hundred Pandas in Bindhyachal and there is business rivalry between them for pilgrims who visit the place. Each Panda has his men, who are called Junnidars, who frequent the railway station and other places where pilgrims come and try to persuade them to go to their respective Pandas, and at times this leads to quarrels between the Junnidars and also between the Pandas. It does not appear from the evidence that there was any special rivalry between the appellant and the deceased.
4. It was probably because it was realised that the above incidents would not provide sufficient motive for the murder, that Shital Singh, P.W 9, in his cross-examination in the Court of Session mentioned two occasions when the deceased and the accused had exchanged not words, once twenty days before the murder and again eight or ten days before the murder. These two incidents were mentioned for the first time in the Court of Session, and we cannot accept that this part of Shital's evidence is true.
5. The learned Government Advocate, however, has urged that where there is direct evidence to prove the commission of murder, the question of motive is not of much importance. This is no doubt true, but in weighing the evidence for the prosecution, in a case like the present, where the case practically rests on the evidence of one witness, we cannot lose sight of the fact that there is apparently no sufficient motive why Makund Lal should have committed the murder.
6. Coming to the direct evidence, the prosecution has produced four persons who are said to have been eye-witnesses of the incident. They are Shital Singh, P.W 9, Mahabir, P.W 10, Mangru, P.W 5 and Gogun, P.W 8. The learned Sessions Judge was not favourably impressed by Mangru and Gugun, and therefore discarded their evidence. Mahabir went back on his previous statement, and in the Court of Session stated that he was not an eye-witness to the murder at all and that he had been made to depose against the accused. The learned Judge admitted in evidence, under Section 288 of the Cr PC the statement made by Mahabir in the Court of the Committing Magistrate. Shital Singh was the only witness who has consistently deposed against all” the accused that it was they who had killed the deceased Dildil.
7. The case for the prosecution is that the appellant, Makund Lal, and the other accused became very friendly with Dildil eight or ten days before the incident. Mt. Mantoria, who had been living with Dildil as his wife, had tried to dissuade him from associating with these people and had warned him that some day they would take his life. She had for the protection of Dildil asked one of the Junnidars, Mahabir, to follow Dildil and to guard him against any harm. Shital, the other witness, was also a servant of Dildil, and it was his duty to go about with Dildil as a sort of bodyguard.
8. There is no apparent reason why Mt. Mantoria should have become apprehensive. She admits that she is a purdanshin woman and never came out of the purdah in her husbond's life time, and that Dildil never used to talk to her about his enmities or friend-ships with other Pandas. She was cross-examined at length about the reason for her suspicion. She also referred to the two litigations mentioned by us above which led her to think that the accused were inimically inclined towards Dildil, and from which she suspected that their apparent friendliness was merely a guise to enable them to have their revenge on him. It, therefore, appears to us that the story about Mt. Mantoria's suspicion was probably introduced with the object of explaining why Mahabir was with Dildil at the time of the murder rather than doing his usual work of trying to catch pilgrims for his master.
9. Munai Barai is another witness who, though he was not a witness to the murder, was produced to show that the deceased was seen in the company of Makund Lal before the murder. He has deposed that at about 5-30 in the evening of the incident Makund Lal first came to his shop, and then came Dildil followed by his two servants, Shital and Mahabir. Makund Lal offered betel leaves to Dildil; and then they all left together and went towards the Patengra Nala. The witness heard of the murder one hour or three quarters of an hour after that. Learned counsel for the appellant has relied on the facts that Munai Barai was found to be in possession of three chhataks of opium and was prosecuted under the Excise Act, and that he was once found drunk and was convicted on that account, as evidence to show that Munai Barai is a bad character and should not be relied upon. He has also urged that Munai Barai has not said that the deceased was accompanied by some pilgrims from Banda, though Shital Singh says that there were five or six pilgrims with him, and that the police made no attempt to prove who those pilgrims were. Munai Barai's statement, however, does not carry us very far, and there seems to be no reason why Makund Lal, if he had made up his mind to murder Dildil should have lain in wait at Munai Barai's shop, to create evidence against himself. According to the evidence of Shital Singh, Dildil used to go every evening to attend the call of nature to Patengra Nala during the rainy season and so long as water was available in the Nala. If eight of the associates of the appellant lay in wait for Dildil near the place of occurrence, there seems to be no reason why Makund Lal should have waited at the shop of this witness. He might have overtaken Dildil on the way instead of waiting at the shop.
10. The time when the murder was committed is of some importance in the case, but it is not possible to fix it with any exactitude. All that can be said is that the murder was committed between 5 and 6-30 in the evening. According to Shital, Dildil left the temple before 6 p.m The temple gate is opened at 4 p.m and there were five or six pilgrims from Banda. They were taken by Dildil to the temple and after they had performed their worship Dildil left for Patengra Nala to case himself. The distance between the temple and the Patengra Nala is about half a mile. On the, way he is said to have stopped at the shop of Munai Barai for betel leaves. From Munai Barai's shop he is said to have proceeded to the Nala. There Makund Lal and Dildil are said to have asked Shital and Mahabir to wait on one side of the railway embankment, while they went over to the other side to case themselves. Eight or ten minutes after Dildil had parted company from Shital and Mahabir, it is said that the latter heard a shout whereupon they rushed to the spot to find that Dildil was being pinned down by the other eight accused while Makund Lal was-hacking at his face and head with a gandasa. Makund Lal is said to have been squatting on the ground and hitting Dildil with the gandasa. When Shital and Mahabir reached near the spot they shouted out to the accused to desist. Two of the accused, Gulab Ohand and Kali Prasad, threatened them that if they proceeded further they would meet with the same fate. After having murdered Dildil, all the accused are said to have left towards the South. On hearing Dildil'e cry Mangru and Gugun, who had also come to the Patengra Nala to case themselves, came towards the place and saw the incident. It was mentioned in the first information report that there were two others, but no attempt has been made to find who they were.
11. The place where the occurrence took place is within one hundred to one hundred and fifty steps from the railway police outpost. There are no trees or houses between the outpost and the place of occurrence, but the intervening land is uneven. The Railway platforms is within one and a half furlongs from the place of occurrence. There is an abadi where Mushars live which is also not very far from the place of occurrence—it may be at a distance of one and one and a half furlongs. It is not explained why no cry for help was made by any of the witnesses who had seen the man being murdered in cold blood. It also does not appear why it was necessary for eight persons to hold him down.
12. The news of the occurrence must have spread like wild fire and so also the names of the-assailants, if they had been identified by the eyewitnesses. It is in the evidence of Raj Bahadur Singh, Ticket Collector, Mirzapur, a witness examined under Section 540 of the Cr PC that the murder was being talked about between 8 or 8-30 and 9 p.m at the tea stall on the platform at Mirzapur Railway Station.
13. The first information report was made at about 7-30 p.m The Sub-Inspector went to the place of occurrence at 8-30, and is said to have remained at the spot till 11 or 11-30, and it was at the spot that he had recorded the evidence of the four eye-witnesses for the prosecution. He did not, however, start making any arrest till he had examined Munai Barai at about midnight. We do not know the exact time of the arrest, but seven of the accused were arrested at their houses after midnight and before 6 O'clock in the morning.
14. Makundlal was arrested under peculiar circumstances. He was detected by Mul Singh, Travelling Ticket Collector, as travelling without ticket by the 2 Down Mail between Allahabad and Mirzapur on the evening of the 18th. The train on that night had reached Allahabad at 8.50 p.m and had left at 9.52 There is no stoppage between Allahabad and Mirzapur. He was found in a third class compartment towards the front portion of the train, and when asked he gave his name as Kedar Nath. There is some mistery as to why he should have given his name as Kedar Nath. The learned Government Advocate has stated that it is the case for the prosecution that Makund Lal had never come to Allahabad; that he had gone direct from Bindhyachal to Mirzapur railway station where he was arrested, and that Mul Singh's statement that he had seen him in the train between Allahabad and Mirzapur is false. Alternatively he has suggested that Makund Lal may have come to Allahabad by the evening passenger train from Bindhyachal and may have been travelling by the 2 Down Mail to Mirzapur in order to create evidence of an alibi. Makund Lal's defence is that he had gone to Cawnpore in the morning, that he was coming back by this train without ticket, and that he was handed over to the police at the Mirzapuc station for travelling without ticket as he had no money to pay the railway fare and the penalty. If Makund Lal was trying to create an alibi evidence, it is surprising that he should have attempted to conceal his identity by giving his name as Kedar Nath.
15. We have checked the timings from the time table and we find that No. 121. Up passenger leaves Bindhyachal at about 6-40 in the evening and reaches Allahabad at about 8-52. If the murder was committed before 6-30 p.m it was possible for a person to catch this train at the Bindhyachal station and come to Allahabad and then catch the 2 Down Mail for Mirapur. Bindhyachal station is, however, so near the place of occurrence that it is difficult to believe that a murderer with blood-stained clothes will dare come to the station to board the train, specially as he had been recognised. It is said that Gugun had gone to the station soon after the murder to quench his thirst, and it must have been common knowledge at the Bindhyachal station that Dildil had been murdered and Makund Lal had murdered him. It is difficult to believe that under those circumstances Makund Lal would dare to come to the station where there were a number of police men on duty who could easily have apprehended him. The other suggestion by the learned Government Advocate that Makund Lal had gone to Mirzapur and was trying to prepare alibi evidence at the station is still more difficult to believe. It is said that a distant relation of a Ticket Collector, Mukhtar Ahmad, at Mirzapur is a friend of Gulab Chand, one of the accused, and it was through this Mukhtar Ahmad that the case that Makund Lal was travelling without a ticket and was detected between Allahabad and Mirzapur was prepared. We can find no justification for this suggestion.
16. At the time of the occurrence Makund Lal, it is said, was wearing a cotton benian and a dhoti. At the time when he was arrested at Mirzapur Station he had a kurta on over the banian, but his banian and the dhoti were said to be blood-stained. It is unlikely that a man who had committed a murder, and who had still blood-stained clothes on, would take the risk of coming to the Mirzapur station and getting him-self arrested by the police. There is no evidence from where the accused got this kurta. Some reliance appears to have been placed by the learned Sessions Judge on the blood-stains on his dhoti and banian. It is true that in the recovery list, Ex. P3, it is mentioned that blood-stains were found at seventeen places on the dhoti and ten places on the banian, but no evidence was given to that effect in any of the Courts below.
17. From the report of the Chemical Examiner, which is acceptable as evidence under the law, the dhoti had three minute blood stains and the banian had one. The blood-stain on the banian was disintegrated and the Imperial Serologist was not able to determine its origin. From the way that the murder was committed it appears to us to be most unlikely that Makund Lal should have got only four minute blood-stains—if it is taken that the stain on the banian was a blood-stain—on his clothes. He should have got big patches marked with blood, as the post mortem report shows that Dildil had as many as eight incised wounds on his head and face which must have caused a lot of bleeding, and blood must have spurted out from several of the wounds.
18. Though Makund Lal had before the Magistrate said that he was not in Bindhyachal, no attempt was made by the prosecution to prove by any independent evidence, besides of course the evidence of the persons mentioned above who had deposed to the murder, that he was at Bindhyachal. This should have been very difficult to prove. There is further no explanation why the railway police, who were within one hundred to one hundred and fifty steps of the place of murder, did not rush to the spot on hearing about it and why no cry for help was made by any of the eye-witnesses. It is in the evidence that Patengra Nala is one of the places frequented by the residents of Bindhyachal for answering calls of nature in the afternoon. There must have been several persons present at the Nala as also at the railway station where a train was due to arrive. No such witnesses have been produced.
19. There is in criminal cases a tendency unfortunately to proceed from the first information report and to confine the proof only to the facts mentioned in that report. No attempt was made in this case to enquire into or to prove the various facts relating to the deceased and the accused from which it might have been possible to establish that the accused were guilty.
20. We find it difficult to believe that Makund Lal soon after having committed the murder would go in blood stained clothes either to the Bindhyachal Railway Station or to the Mirzapur Railway Station, and if he had been trying to create alibi evidence, it is still more surprising that he should have tried to hide his identity and give his name as Kedar Nath. There seems to be no reason for disbelieving the evidence of Mul Singh that the appellant was detected as travelling without ticket. The fact that he was handed over to the police at the Mirzapur Station as a person travelling without ticket is borne out by the evidence of a number of witnesses examined by the learned Sessions Judge under Section 540 of the Cr PC. There is no doubt the possibility, if the murder was committed early enough, that Makund Lal could have walked to the next railway station, Birohi, three miles from Bindhyachal, and caught the passenger train there, but in that case why he came back the same night to Mirzapur and did not remain at Allahabad or Cawnpore and create alibi evidence at those places is another of the mysteries that remains unsolved.
21. Under Section 342 of the Cr PC it is the duty of the learned Sessions Judge to question the accused generally on the case after the witnesses for the prosecution have been examined. The object of this examination is to afford the accused an opportunity of explaining any circumstances appearing in the evidence against him, and it is, therefore, incumbent on the Court to draw the attention of the accused to all the important points upon which evidence has been given by the prosecution and which will, in the absence of an explanation, tell against him. Unfortunately there is an increasing tendency to put to the accused three or four stereotyped questions in this form: (1) Is this the statement made by you before the Committing Magistrate? (2) Do you wish to add anything to that statement? (3) Why have the prosecution witnesses given evidence against you? (4) Do you want to produce any defence? This Court has more than once drawn the attention of learned Sessions Judges to the fact that although they must not cross-examine the accused, they must put such questions to him as will afford him the opportunity of explaining the circumstances appearing in the evidence against him. They must in particular draw the attention of the accused to those circumstances which appear for the first time, or in a more extended form, in the evidence adduced by the prosecution at the Sessions trial, as these are circumstances in respect of which the accused could not be expected to give any explanation when examined by the Committing Magistrate. In this case we regret to observe that questions not dissimilar to those mentioned above were put to the accused, and that the latter was not given that full opportunity to explain the circumstances appearing against him as is contemplated by Section 342 of the Cr PC.
22. Coming back to the direct evidence of the four witnesses, the learned Sessions Judge had the benefit of marking the demeanour of the witnesses, Mangru and Gugun, and as he was not satisfied with their demeanour and they created an unfavourable impression on his mind, we would not prima facie be justified in relying on their evidence. Their evidence has been read out to us, and we agree with the learned Sessions Judge's estimate of its worth. Mangru is aged only nineteen and he started his career of being a witness for the prosecution at the age of fourteen and since then he has given evidence in about a dozen cases. The other witness, Gugun, lives near the police Kotwali and has been appearing as a witness for the prosecution in a number of cases. It is, true that the learned Sessions Judge could, under Section 288 of the Cr PC, rely on the evidence of Mahabir in the Court of the Committing Magistrate, but in view of the fact that he now denies that he saw the occurrence or that he was present at the spot when the murder took place, it would be unsafe to place much reliance on his evidence. We are, therefore, practically left with the evidence of Shital, a servant of the deceased. He may have seen the murder committed, but at the same time it is possible that he has only heard of it and is pretending that he actually saw it. While on the one hand we have the evidence of Shital, on the other, we have the evidence of the railway witnesses who were examined by the learned Sessions Judge under Section 540 of the Cr PC which makes it doubtful whether Makund Lal could have been one of the murderers. There is the further fact that Shital Singh named ten persons as the assailants of Dildil when it is very unlikely that all the ten could have taken part in the murder, as deposed to by him, and that as many as eight persons against whom he gave direct evidence were acquitted by the learned Sessions Judge. Under the circumstances we consider that the evidence for the prosecution is not such that we can uphold the conviction and the sentence of death on the appellant, Makund Lal.
23. It is a tragedy that a gruesome murder like the present should be committed in daylight, on the outskirts of a town and within a hundred and fifty paces of a police outpost, and that yet there should not be sufficient evidence to establish beyond doubt the identity of the murderer or murderers.
24. The responsibility for this unsatisfactory state of affairs must,-in our opinion, be shared alike by the public which is reluctant to give evidence and the police whose investigation of the crime was inadequate.
25. The result, therefore, is that we allow this appeal, set aside the conviction and the sentence and direct that the appellant be released forthwith unless wanted in connection with some other case.
26. Appeal allowed.