EMPEROR Vs. BHIKHA GOBER

JUDGEMENT

(1.) This is an appeal by accused No. 1 against his conviction of the offence of murder by the Sessions Judge of Kaira. The other accused was acquitted.

(2.) There is no doubt that a woman named Bai Vakhat, the wife of the complainant, was murdered in a field in the afternoon of October 1, 1942, The only question is whether the appellant was guilty of the murder, as the learned Sessions Judge held. The assessors were of opinion that the case was not proved. There were two eye-witnesses to the offence,-Balu (exhibit 9) and Jamal (exhibit 10)-, and the learned Judge and all the assessors have disbelieved those eye-witnesses. Judging merely from the depositions, I feel myself some doubt whether the learned Judge and assessors were right in disbelieving that evidence, particularly the evidence of Balu, who says that he narrated what he saw to Rama the same night and to the complainant the next day, and both the witnesses corroborate his statement. Balu and Jamal, according to their statements, witnessed the offence from different sides of the field, and, therefore, they might or might not have seen each other, and according to their evidence they did not see each other. I should have expected that, if the evidence was concocted, the witnesses would have been careful to say that each noticed the other doing something which the other said he was doing. However, there it is. The learned Judge and the assessors who saw these witnesses in the box disbelieved them, and it would not be right for this Court to overrule their opinion, when we have not had the advantage of seeing these witnesses. It is quite possible that if we had seen the witnesses, we should have agreed that they were not telling the truth. But if one disbelieves the evidence of these eye-witnesses, it necessarily follows that an attempt has been made to manufacture evidence against the accused, and that necessitates the Court being particularly careful in relation to the rest of the evidence.

(3.) The learned Sessions Judge has convicted accused No. 1 on the strength of the evidence of footmarks and evidence of the production of ornaments said to have been on the murdered woman. With regard to the footmarks the evidence is unreliable and inadequate. According to the first panchnama made on October 2, no footmarks were noticed. That is exhibit 19. But the Sub-Inspector says that somebody, whose name he was not prepared to disclose, pointed out footmarks to him on some subsequent occasion, and as a result he attached a pair of shoes from the accused's house, and he says that the footmarks tallied with those shoes. As we do not know the circumstances in which the footmarks were discovered, the evidence is obviously unreliable, because it is possible that the undisclosed informant himself collected the accused's shoes and made the impressions after the murder in order to manufacture evidence. And the evidence is inadequate, because all the Police Sub-Inspector and the panch say is that the footmarks tallied with the accused's shoes. That may mean no more than that these marks were made by shoes of a size corresponding to the size of the accused's shoes. That is not enough. There may be a large number of shoes in the village of the size of the accused's shoes. The evidence must go further and show that the marks had some peculiarity which was found in the shoes of the accused, and would not be found in most other shoes. In my view, one cannot attach any importance whatever to the evidence of footmarks.