NIHALA Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision by Nihala, Bhagwat, Pitam, Shama and Bal Govind Jats of Ludhabai Police Station Sevar, District Bharatpur against the order of the learned Sessions Judge, Bharatpur setting aside the order of their discharge by the Sub-Divisional Magistrate, Bharatpur and directing the Sub-Divisional Magistrate to commit the applicants to Sessions for trial in a case under sec. 302 of the Indian Penal Code.

(2.) I have heard the learned counsel for the applicants and also the learned Government Advocate. The only evidence which was produced by the prosecution against these applicants was that on the night preceding the alleged murder of Ch. Ramsingh of Ludhabai on the 29th November, 1950 the applicants were seen along with Ganeshi and other accused who were committed by Sub Divisional Magistrate at the Aghana (fire place) of Ganeshi and were told by Ganeshi that Ch. Ramsingh would be coming to his well the next morning and so they should be prepared to help him and that these five applicants were seen in the Ahrar field near the place where the occurrence took place next morning. This evidence in the opinion of the committing Magistrate did not make out a prima facie case against the applicants. The learned Sessions Judge however, has held that the evidence made out a prima facie case against the applicants and so they should not have been discharged but should have been committed along with others. It is no doubt true that at the time of commitment the committing Magistrate ought not to scrutinize the evidence with a view to finding out whether it was sufficient for conviction of the accused. The only thing that he has got to see is whether the evidence is sufficient for committing the accused for trial. If therefore, there is prima facie evidence the committing Magistrate should not trouble himself with going deep into the matter and find out whether there were reasons for discrediting the evidence. If the evidence on its face makes out a case for commitment it is enough for committing the accused. It should be left for the trial court to examine the evidence minutely with a view to rinding out whether it proves the case against the accused without a reasonable shadow of doubt. In the present case the learned committing Magistrate has certainly been at pains to show that the witnesses against the applicants were not worthy of credit and has weighed the probabilities which should have been left to the decision of the Sessions Court. But the learned Magistrate has also carefully examined whether the evidence taken at its face value made out any prima facie case against the applicants. The learned Magistrate says that one of the witnesses Gaddar clearly denies that Bal Govind applicant was present at the time of the alleged conspiracy on the previous night. Bal Govind was therefore exonerated so far as the alleged conspiracy is concerned by the prosecution witness Gaddar himself. The only evidence that remains against him is that he was seen near the place of occurrence in Ahrar field on the day of occurrence. I will discuss whether this alone was sufficient to make out a prima facie case of abetment of this murder or for matter of that any other offence while discussing the case of other applicants. Suffice it to say for the present, that Bal Govind was not present at the time of the alleged conspiracy and therefore, there is no prima facie case that he had conspired with other accused to commit the murder of Ramsingh or for the matter of any other act of violence upon him. Coming to the cases of the remaining four applicants there are only two witnesses for the alleged conspiracy. They are Roomy and Gaddar. Their evidence comes to this that Gaddar asked the other accused to accompany him to the well next morning because in case the deceased Ramsingh turned up there might be a quarrel. This does not show that there was an agreement between Ganeshia and the applicants that they would murder Ramsingh or commit any other act of offence upon him. The only other evidence against the applicants is that at the time of the occurrence they were found going away from the Ahrar fields near the place of occurrence. It is not the prosecution case that the applicants took any part in the Marpit. Simply because certain persons are found armed with lathies near the place of occurrence it cannot be said that they were there to commit any offence. The names of the applicants are conspicuous by their absence in the first information report and even the evidence produced does not show that they in any way helped the other accused at the time of Marpit or that they were either participating in the acts of violence committed upon the deceased or violence was committed by several persons including the applicants in furtherance of the common intention of all or that the applicants instigated any person to commit violence upon Ramsingh or engaged with other persons in any conspiracy to commit violence upon Ramsingh or they had intentionally aided by any act or illegal omission committing of any violence upon Ramsingh. There is therefore, no prima facie case either of murder or of abetment of murder or for the matter of that of any other offence against the applicants.