HARI GOPE Vs. EMPEROR

JUDGEMENT

(1.) In these two appeals there are-seven appellants. All of them except Kali Gope have been convicted under Section 118, Indian Penal Code, and sentenced to one year and a half rigorous-imprisonment. Kali Gope was convicted under Section 147, Indian 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, Indian Penal Code, for causing; the death of Kashi Gope and sentenced to transportation for life. The appellant Kali Gope was convicted under Section 325, Indian 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. (His Lordship narrated the facts of the case and set out the contentions of both the sides and in doing so-observed as follows:) 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.

(2.) The question of possession of Plot No. 100 or plot No. 172 or any portion of the 10 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 riot 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. (After discussing the evidence the judgment proceeds:) The witnesses did state that the accused were Objecting as to why Tulach Gope should cut the crop and this would only be because the accused party felt they had a right to that crop and that could only 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 a 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.

(3.) 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 importance 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 in Kunja Subudhi V/s. Emperor A.I.R. 1929 Pat. 275 where Fazl Ali J. (as he then was) referred to the observations of Sir Lawrence Jenkins in Ram Ranjan Roy V/s. 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. (His Lordship after further discussing the evidence concluded.)