JUDGMENT [ENTITY], J.
1. The appellants, three in number (accused 1 2 and 4), have been convicted by the Sessions; Judge of Cuddapah of offences of rioting, murder and attempt to murder. All of them were sentenced to one year's rigorous imprisonment under [SECTION], [ACT] They were also found guilty under [SECTION], [ACT] While a sentence of death was passed on A-1, A-2 and A-4 who were found constructively liable were sentenced to transportation for life.
They were also awarded a term of 7 years' rigorous imprisonment under each of the counts under [SECTION] either directly or read with [SECTION], the sentences to run concurrently. In addition, they were also convicted under [SECTION], [ACT] and sentenced to one year's rigorous imprisonment.
2. On 10-10-1953 there was a rioting in the village of Janagalapalle, Cuddapah District, before midday in the course of which fire-arms were used and a man by name [ENTITY] was killed and P. Ws. 1 to 5 and one [ENTITY] sustained gun-shot wounds. It was the prosecution case that 15 persons including the appellants took part in this rioting. These 16 persons were placed on trial before the Sessions Judge on a number of charges. The trial ended in conviction of only the appellants though not on all the charges brought against them, who were sentenced as mentioned above. The rest of the accused were acquitted by the Sessions Judge.
3. Stated briefly, the prosecution case is this: There were two factions in the village, one led by two persons [ENTITY] and [ENTITY], the latter being the brother of the deceased & the other headed by accused 1 in 1953. There were as many as 14 cases against both parties and they were bound over to keep peace under [SECTION], [ACT] From 17-3-1953, Reserve Police were stationed in the village to prevent breach of peace. On 4-10-1953, a new party of five Reserve Constables and a [ENTITY] arrived in the village. The same day, one titus of the accused's party was attacked by the deceased, his brother & some of their partymen. In regard to this attack, they were charge, sheeted before the S. S. M., Jammalamadugu ana that case was pending on the date of the present offence.
On the morning of 10-10-53, at about 7-30 or 8-0 a. m., the deceased accompained by his elder brother [ENTITY] P. Ws. 1 to 5 [ENTITY] & [ENTITY], in all nine, started from their village to see the ground-nut crop in the fields belonging to the deceased about a mile from the village. After inspection they were returning home along the road running north to south.
When the party reached the mango garden of one [ENTITY] abutting the road, all the 16 accused jumped over the garden while A-1, A-2 and A-4 armed with guns and the rest with sticks, spears and hatchets came in front of the prosecution party. A-1 first shot at the deceased but that missed him. But the second shot hit him and he dropped down. Accused 2 fired at P. W. 5 and he fell down. Accused 4 fired two shots and wounded P. Ws. 1 to 4 and [ENTITY].
The injured persons P. Ws. 1 to 4 ran and hid themselves in the field and returned to the scene of occurrence some time later on their way to their village and found the deceased lying dead and P. W. 5 lying on a cot. Some of the Reserve Police Constables who had information of this shooting incident within a few minutes were at the scene by that time. At about 8-20 [ENTITY] appeared at the police station of Palur (live miles away) and presented a written complaint Ex. P-24 to the Station Writer (P. W. 13) in the absence of the Sub Inspector, implicating all the 16 accused, stating in brief the main prosecution case.
P. W. 13 registered a case and sent express reports to the higher authorities. As the Kundu river was in floods and was unfordable he could not get to the scene that night. He left the place at about 5-30 a.m. the next day and reached the village at 9-0 a.m. He saw the dead body of [ENTITY], and also P. W. 5 lying with injuries on a cot. P. Ws. 1 to 4 were also there and the Reserve Police were keeping watch.
He then recorded the dying declaration of P. W. 5 and examined P. Ws. 1 to 4 but did not reduce their statements to writing. P. Ws. 1 to 4 denied that they were so examined by P. W. 13. The inquest began at 11 a.m. The Circle Inspector of Police (P.W. 14) arrived in the village at 2-0 p. m., completed the inquest and took over investigation.
He examined P. Ws. 1 to 6, inspected the scene of offence and seized five spent-cartridges. After the completion of the investigation, the final charge-sheet was laid against all the accused on 21-12-1953.
4. In support of its case the prosecution examined 14 witnesses of whom P. Ws. 1 to 6 are direct witnesses, P. W. 7 the Arms expert, P, Ws. 8 and 9 the two doctors, P. W. 13 the Station Writer at Palur who received the first information report and P. W. 14 the Inspector of Police who conducted the investigation.
5. P. W. 1's deposition is to the following effect:
There were two factions in the village and for that reason there was police 'bandobust' in the village. On the date of the occurrence, he along with the deceased, his brother [ENTITY], [ENTITY], P. Ws. 2 to 5, went to see the ground-nut fields belonging to the deceased and his brothers. After inspecting the crop they were going back to the village.
When they reached the mango garden of It a Veerareddy lying by the side of the Easta at about 10 or 11 A. M., all the 16 accused jumped out of the garden into the Rasta abusing the prosecution party, A-1, A-2 and A-4 armed with a gun each and others armed with sticks or spears or hatchets. A-1 shot at the deceased twice in quick succession. While the first shot missed the deceased; the second one struck him down. A-2 shot P. W. 5 twice and the latter fell down.
A-4 fired his gun twice which caused injuries to the witness and P. Ws. 2 to 4. The witness ran down and hid himself in a redgram field nearby. Sometime later i. e., towards the evening, he returned to the scene to see the Police keeping watch and P. W. 5 and the deceased lying there with injuries. He stayed there as the Police asked him to sit down.
The Inspector of Police examined him and he showed the injuries to the latter. Then, he was sent to the Proddatur Hospital where the doctor extracted a pellet from his body.
6. P. Ws. 2 to 5 corroborate P. W. 1 and it is not necessary to refer to their evidence except to what P. W. 5 had added. When the shot hit him behind his left ear he fell down unconscious and when he regained consciousness he found accused 9 and 10 beating him with sticks and that he lost consciousness again. Later in the evening, when he came back to senses he found himself on a cot.
The next day, he was sent to the hospital at Arlagedda where the local Sub-Magistrate recorded his dying declaration Ex. D-11. Subsequently, he was removed to the head-quarters Hospital at Kurnool where X-ray photo was taken. In Ex. D-1l only the names of A-1, A-2 and A-4 are mentioned and as against A-4 all that is stated is that there was a gun in his hand.
7. P. W. 6 the wife of the owner of the mango garden abutting the scene of offence stated that when she was cutting grass in her garden that morning she saw the deceased, P. W. 5, [ENTITY], P. W. 1 and some others coming from Rampalle aide at Peda Amballa Proddu (about 11 A. M.). Just at that time, A-1 to A-4 and 10 other persons jumped into the Rampalle Rasta from inside her garden in front of the Prosecution party.
Accused 1, 2 and 4 had guns and A-1 shot with his gun and the deceased was hit. Then accused 2 shot and "that shot went by the side". Again A-1 shot at the deceased and the deceased fell down. Next, P. W. 5 was shot at by the second accused. Lastly A-4 fired his gun and the assailants ran away towards Rampalle. Then she went to the deceased and pitied him when A-3 pushed her aside saying it did not in any way concern her.
The next day the Circle Inspector of Police examined her at the inquest. The evidence of P. Ws. 7 to 9 is only helpful to show that the deceased died of gun shot injuries and several of the wounds found on P. Ws. 1 to 5 are of the same character. This will be adverted to in the appropriate context.
8. The plea of the accused was one of denial. They stated that they were implicated because of bitter feelings between them and the prosecution party. A-6 pleaded alibi. His defence was that on that day he was away at Kurnool instructing his lawyer.
9. The learned Sessions Judge convicted the appellants as indicated above relying mainly on the evidence of P. W. 6. As regards the rest of the accused the learned Sessions Judge doubted their presence at the scene of offence as P. W. 6 did not mention their names and as he was not prepared to attach any weight to the testimony of P. Ws. 1 to 5 in that behalf.
He also accepted the plea of alibi of accused 6 believing implicitly D. W. 1 a lawyer practising at Kurnool who stated that on the fateful morning accused 6 was with him in the Sessions Court at Kurnool instructing him in a bail application filed on behalf of a close relation of his. In the opinion of the learned Judge P. W. 6 was an independent and disinterested witness and could be safely relied on.
But, with regard to A-3, though mention of him was made by her in the Sessions Court he was inclined to give the benefit of doubt to him for the reason that she did not implicate him in Ex. D-10 a statement made by her under [SECTION], [ACT] Here, we may point out that the learned Sessions Judge was in error because in Ex. D-10 he is not only stated to have participated in the riot but a specific part is attributed to him. In the result, except A-1, A-2 and A-4 all the other accused have been acquitted by him.
10. In this appeal, the judgment of the Sessions Judge is assailed on several grounds, viz., (1) The prosesution case that the accused came right in front of the prosecution party and shot at them is incredible and the shots must have proceeded from the mango garden.
(2) The failure of the prosecution to examine the [ENTITY] of the Reserve Police Party and [ENTITY] has vitiated the trial.
(3) The convictions under [SECTION] and [SECTION] read with [SECTION] are unsustainable as only three of the accused are found guilty of some of the charges brought against them, (4) When no credence was given to the evidence of the prosecution witnesses in regard to the acquitted accused the same ought to have been rejected as unreliable even as regards the appellants.
(5) No weight should have been attached to the testimony of any of the prosecution witnesses in so far as it seeks to attribute specific acts to any of the appellants.
11. Re: No. 1: It is urged by the learned Counsel for the appellants that whoever the culprits were they would not have come into the road and fired their guns when they could have hid themselves behind the wall without revealing their identity and that the prosecution has invented the story of the accused jumping over the wall and coming across the road so that it might be said that they had every opportunity of recognising their assailants.
This is reinforced by the recital in Ex. P-33 that some of the leaves of aloe raised on the wall adjoining the garden to the east of the rasta were perforated. Reliance was also placed on the admission of some of the prosecution witnesses that the culprits could shoot from the garden itself if they wanted to do so. We do not think that there is much force in this contention.
The admission of the prosecution witnesses does not in any way probablise the firing of the guns from behind the wall. This argument overlooks the physical features of the place. It is in evidence that the rasta is 3" lower in level than the mango garden. Having regard to the fact that the wall was 3" high, the rioters had taken refuge behind the wall and shot at the prosecution party the wounds found on the person of either the deceased or the prosecution witnesses could not have been caused.
If the assailants wanted to conceal themselves they would have to kneel behind the wall rest the guns on the wall and if the guns were fired in that position the pellets would have grazed ever the heads of the victims, the top of the wall being at a height of 6" from the cart-track. The aloe leaves could have easily been perforated if guns were fired by the rioters standing near the wall, to the west of the scene.
Further, some of the injuries found on the deceased and P. W. 5 negative any theory of shooting from long distance. The deceased had an oval lacerated injury with marks of charring and with edges averted for about 1/4" while at the bottom of red and blackened to the extent of 1/10" net round. This is clear indication that the fire arms were discharged from a yard and a half at the most.
In all probability, the culprits must have shot at the deceased in the course of their chase when the prosecution party were fleeing either as soon as they saw the assailants with the guns or when the first shot was fired. [ENTITY] in his "Medical Jurisprudence" Vol. I (Edn. 10) page 441 says:
It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging and the nature of the weapon. It is unusual, however to get marks of burning beyond a yard or a yard and a half with a shot-gun or at more than half a yard with a revolver.
The opinion of [ENTITY] contained in his 'Medical Jurisprudence' at page 205 (Edn. 8) is to the same effect. The author says:
If a, fire-arm is discharged very close to the body or in actual contact subcutaneous tissues over an area of 2 or 3" round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke & tatooed with unburnt grains of gun-powder.
These passages confirm the view we have taken.
12. There is also another circumstance which, to a considerable extent, disproves the suggestion of the shooting from the garden Ex. D-13 the earliest record of the incident made by the Reserve Police Party on which great reliance was placed for the accused says:
People of [ENTITY] came to the camp and stated that on the north of the village in the rasta going to Rampalle there was firing of guns and men have fallen down and asked us to come.
This entry was made within a few minutes of the event and when there was hardly any time for inventing a false version. The note may therefore be taken to represent the facts correctly. This contention therefore cannot prevail.
13. Re: No. 2: The submission made by Mr. [ENTITY] was that the omission to examine the [ENTITY] and [ENTITY] who were examined in the Committing Court had considerably prejudiced the accused in their defence and was fatal to the prosecution. To substantiate this, reliance was placed on - '[PRECEDENT]' at p. 56 (A), in which the Supreme Court has expressed the opinion that eye-witnesses necessary for unfolding the narrative should be examined by the prosecution.
Their Lordships extracted with approval a passage from the judgment of the Judicial Committee in - '[PRECEDENT], which has summarised the law on the subject succintly, if we may say so with respect:
It is said that the state of things above described arose because of supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as - '[PRECEDENT], to the effect that all available eye-witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses.
Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence.
If it does so, confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution.
14 Now, bearing the rule contained in these observations in mind, we will consider whether by omitting to examine the two witnesses mentioned above the prosecution has failed in its duty and whether it has in any way affected the result of the case. First, to deal with the [ENTITY] who was examined in the committal Court and whose deposition has been marked as Ex. D-17, we do not think his evidence is very material. He did not witness the occurrence.
All that appears from Ex. D-17 is that he proceeded to the scene shortly after the occurrence to find [ENTITY] dead and P. W. 1 lying with injuries and that he was not told of the names of the accused. The learned Counsel for the appellants drew our attention to a statement in the judgment.
It is suggested by the learned Public Prosecutor that the [ENTITY] as well as [ENTITY] were not well-disposed towards the prosecution party and therefore the prosecution did not think it worthwhile to examine them in this Court and commented that it was improper that any Public Prosecutor should make a suggestion of that kind without any basis therefor. He drew our attention to the remarks of the Pull Bench in - '[PRECEDENT], where the learned Judges condemned the statement of the Public Prosecutor that he had information that the witnesses had turned hostile and that action suggests that his answers given in cross-examination ought not to be accepted or made the foundation for cross-examining him.
We express our respectful accord with this criticism. In our judgment, it is not a healthy practice for Public Prosecutors to tell the Court that he had information that a particular witness had turned hostile. The inference of the hostility of a witness could be drawn only from the answers given by him & to some extent from the demeanour.
15. But that does not very much help the accused in the present enquiry. As we have already remarked the jamedar came on the scene only after the event and he is not a witness who could throw any light on the actual riot and murder. His evidence would have been only helpful to show that the names of the assailants were not disclosed to them. That is not the same thing as his being able to speak to something about the occurrence.
We do not think there is any obligation on the prosecution to call every witness who might speak to something having direct or indirect bearing on the offence. In the passage cited above, their Lordships did not approve of the principle laid down in '[PRECEDENT]' that all available witnesses should be called by the prosecution irrespective of whether their names were on the list of defence witnesses or not.
Their Lordships of the Judicial Committee thought that the proposition was stated by [ENTITY] C.J., too broadly. It is seen from the Judgment that the prosecution should have much latitute in the matter while they should conduct the prosecution with fairness and candour. In '[PRECEDENT], the Privy Council has re-affirmed the principle stated in - '[PRECEDENT].
It was stated there also that the prosecution had discretion in choosing the witnesses and the court would not normally interfere with the exercise of that discretion unless it was apparent that the Prosecution was influenced by oblique motives. It is thus manifest that it is not part of the duty of the Public Prosecutor to examine a witness unless he had witnessed the occurrence and would help the Court in coming to a decision whether his evidence would be for or against the prosecution. It is difficult to bring the jamedar within that category of witnesses.
16. As regards [ENTITY], one of the eyewitnesses, being the victim, it is represented to up that [ENTITY] deposed in the committal Court, that the rioters did not come in front of the prosecution party but that fire-arms were discharged from behind the wall and this would destroy completely the prosecution case. For one thing, his evidence is not put on record nor has this been proved through any of the prosecution witnesses.
That apart, that statement of [ENTITY] has to be discounted for the reasons already stated. It has also to be remembered that he was crossexamined by the prosecution in the committal Court as he was regarded as a hostile witness. A memo was filed in the Sessions Court giving the reason for dispensing with this witness, namely, that he was gained over by the accused and that even in the committing Court he was trying to help the accused, his deposition in the latter Court being quite inconsistent with his earlier statements.
So, in that situation, we do not think that the prosecution failed in its duty in not examining him. It is not very desirable that the prosecution should put a person in the witness box and proceed immediately to discredit him by cross-examination. This will lead to confusion. That such a practice is not very commendable appears from '[PRECEDENT]. In our opinion, this branch of the argument also cannot find acceptance with us.
17. Now coming to the contention that the convictions under [SECTION] and [SECTION] read with [SECTION] are unsustainable since only three appellants are found to have taken part in the crime, stated So, the argument will be unanswerable because to attract the provisions of [SECTION] the presence of five or more persons is necessary. But this argument is not based on the evidence and the findings of the learned Judge.
The Sessions Judge has found that there were 10 or more persons along with accused 1, 2 and 4 who participated in the riot, but he thought that the identity of other participants has not been satisfactorily made out. In order to sustain a charge under [SECTION], it is not necessary that five or more persons should be found guilty. All that has to be proved is that there were five or more persons who committed the offence.
In this view of the matter, it is not necessary for us to consider whether if the charge under [SECTION] should fail it is competent for this Court to substitute a conviction under [SECTION]. Therefore no effect could be given to this argument either.
18. This leads us to the question whether the evidence of the prosecution witnesses could be accepted when it was not relied on as against the other accused. In support of this proposition several authorities were placed before us. We may refer to a few of them. In - '[ENTITY] v. Emperor' AIR 1933 All 314 (F), one [ENTITY] a wizened and decrepit old man was implicated in a case of communal rioting with murder along with a number of persons and he was one of the seven that were sentenced to death.
On appeal, the High Court sent for him and had him medically examined which revealed that he could not have taken part in the crime, having regard to his physical condition. On this, the appellate Court reached the conclusion that he was falsely implicated and the witness that deposed against him had committed perjury in regard to him. Because of this, the High Court thought that the other accused whose convictions were based on the testimony of witnesses who gave false evidence against [ENTITY] were entitled to acquittal as no reliance could be placed on such evidence against others also.
19. - '[PRECEDENT] illustrates this principle. To the same effect is a ruling of a Bench of the Lahore High Court in - [PRECEDENT]. It was there stated that when it was established that a witness had committed perjury by falsely implicating an accused, his evidence against the other accused should not be accepted.
The same dictum is contained in some other cases of that High Court, for instance, in - '[PRECEDENT]. The rule stated in [CASE NUMBER] by a Bench of the Madras High Court and in [CASE NUMBER] by a Bench of this Court is in consonance with the above rulings. In the first case, it was stated that it would be dangerous to act on the deposition of a witness who had not hesitated to make a false statement not only in the complaint made by him but also in the committal court.
In [CASE NUMBER] to which one of us was a party, the learned Judges remarked that it would not be possible to act on the evidence of witnesses which was disbelieved against an accused who set up a plea of alibi which found acceptance with this Court.
20. The learned Public Prosecutor cited to us a pronouncement of the Supreme Court in - '[PRECEDENT]' as authority for the proposition that merely because the prosecution witnesses have not spoken the whole truth their evidence should not be rejected in toto and that every effort should be made by the Courts to disengage truth from falsehood and give effect only to that portion of the evidence which is true, and argued that the above decisions cannot be regarded as good law in view of the opinion expressed in this case. The passage called in aid by the Public Prosecutor may be set out here:
After a careful consideration of the contentions raised by the learned Counsel, we are of the opinion that though the prosecution witnesses accepted by the High Court have not told the whole truth and though from their evidence it is not possible to get an absolutely true picture of the events, and of the tragic drama that was staged by the villagers on the afternoon of 25-7-1949 and which resulted in the murders of three persons and the cutting of the nose of a fourth, yet it is not possible to accept the contention that the prosecution case is a complete fabrication and that the murders of the three persons and the cutting of the nose of fourth did not result from a riot that occurred that afternoon in which some at least of the accused participated.
It is true that in the present state of the record, the story given by the eye-witnesses has to be carefully scrutinised and unless it can be said with reasonable certainty that a certain person took part in the riot the benefit of doubt has to be given to him. The learned Sessions Judge was undoubtedly in error when he said that it was impossible to find out from the state of the prosecution evidence with any amount of certainty who among the accused persons participated in the offence and that it would be a pure gamble to convict any of the accused.
He made no effort to disengage the truth from falsehood and to sift the grain from the chaff but took an easy course and after holding the evidence discrepant held that the whole case was untrue. We are of opinion that in the case of some of the accused persons, the material on the record is sufficiently convincing and there were no sufficient or satisfactory reasons for their acquittal, while in the case of some others it seems to us that the High Court erroneously converted the acquittals into convictions.
We do not find any conflict between the view taken by the Supreme Court and the formula contained in the above cited cases. In our opinion, the Supreme Court in the case noticed above does not countenance the acceptance of the evidence of a person who has obviously committed perjury by falsely implicating an accused person. Every effort should be made by a Court as pointed out by their Lordships to discover a core of truth in the evidence or to put it in other words to "separate the grain from the chaff."
Where the untruths spoken to by the witnesses are merely an embroidery to the story or are to be attributed to lack of memory, the whole statement of the witnesses should not be disregarded but an attempt should be made to disengage the truth from falsehood. But when it is established that the witnesses have perjured themselves either with regard to particular accused or on a major part of the case, that should be enough to discredit the witnesses altogether.
21. In this context, what Mr. [ENTITY] says in the introduction to his Law of Evidence while discussing the topic of common admixture of false and true evidence in India, is of some interest:
In connection with the same subject, but more especially with reference to the testimony of individual witnesses, Mr. [ENTITY] well observes thus: 'There is a maxim - 'falsus in uno falsus in omnibus' - false in one particular, false in all. I need hardly say that this is everywhere a somewhat dangerous maxim, but especially in India; for if a whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witnesses might be dispensed with: for in the great majority of cases the evidence of a native witness will be found tainted with falsehood.
There is almost always a fringe or embroidery to a story, however true in the main. The falsehood should be considered in weighing the evidence; and it may be so glaring as utterly to destroy confidence in the witness altogether. But when there is reason to believe that the main part of the deposition is true, it should not be arbitrarily rejected because of a want of veracity on perhaps some very minor point.
The case will, however, be different if one of the essential circumstances in the story be clearly unfounded. This, to use a felicitous expression of Mr. [ENTITY]'s "is to pull out a stone out of an arch: the whole fabric must fall to the ground."
The approach in cases arising out of factions is indicated in - '[PRECEDENT].
22. The rule that evolves itself out of this discussion is that where the evidence given by a witness is demonstrably false either by reason of the fact that essential circumstances of the story given out by him are found to be unfounded or some innocent person have been implicated out of some motive or other especially when the witness is shown to be of an interested or partisan character, and it is rejected either as against an individual accused or a major part of the case it would be unsafe to accept it against other accused or as regards other circumstances, In cases of factious fight a high degree of certainty is required.
(23-28) Bearing these cautions in mind, we have to assess the evidence of P. Ws. 1 to 6 as against the appellants. (Their Lordships then referred to their evidence and found that it was unsafe to rely on their evidence:) Then, there is no material on which the convictions of the appellants could be supported.
29. It follows that their convictions and sentences should be set aside and the appeals allowed. The appellants are directed to be set at liberty.