- (1.) THIS is an appeal by Raidania against his conviction under sec. 304 of the Indian Penal Code by the Sessions Judge of Bhilwara.
(2.) THE prosecution story was briefly this: Sundaria, Gokalia and Raidania accused are said to have escaped from the Banera Jail while Fozia and Sobatia accused are said to have absconded from the Pandera settlement for Kanjars. Consequently Kalyan Singh, Sub-Inspector, deputed a party of certain Kanjars of the settlement, under the leadership of constable Alladin, for the arrest of these persons. This party set out in search of the absconders on the 19th December, 1949. THEy found these five accused and one Tufania near a well in the jungle of village Borkera on the 20th December, 1949. THE statement of Alladin constable is that five of these persons were sleeping, while the sixth Sobatia was standing guard with a gun in his hand. Immediately, on seeing the constable and his companions, Sobatia woke up the others, and they started running away. Alladin and his party gave chase to these six persons. Soon after the chase began the gun was taken by Raidania appellant from the hands of Sobatia. THE chase lasted for some miles. During the chase, the six persons went behind a sugarcane field. THE sugar-canes in this field were more than a man's height, and therefore these persons were not visible to the chasing party. Hastia, who was one of the members of the chasing party, was a little in advance of others. A shot was heard from behind the sugar-cane field, which injured Hastia who died immediately. THEreafter, the six persons again started running away, and the gun was seen in the hands of Raidania. Eventually three of these persons namely Sundaria. , Gokalia and Fozia were arrested, while the remaining three, namely Raidania, Sobatia and Tufania escaped. Later on, however, Raidania and Sobatia were also arrested, while Tufania is still said to be absconding. THE above five persons were put up for trial for the murder of Hastia. Raidania was charged under sec. 302, while the other four were charged under sec. 302 read with sec. 34 of the Indian Penal Code. THE learned Sessions Judge acquitted the other four persons holding that no common intention had been established between them, and no case of abetment had been made against them. He, however, convicted Raidania under sec. 304 I. P. C. , and sentenced him to ten years' rigorous imprisonment, and a small fine. The appellant's case was that he was not there at all when the incident took place, and that he was at Ahemdabad. He alleged that he was arrested at the end of March, 1950, when he was returning from Ahemdabad. So far as the facts are concerned, we are satisfied from the evidence of Alladin constable P. W. 13 and Ramjia P. W. 5, whom we see no reason to disbelieve, that the accused was one of the six persons who were chased by Alladin constable and his party, and was one of the absconders. We are also satisfied that, after the chase began, the gun, which was originally with Sobatia, passed into the hands of the accused. Further, the evidence on the record proves that after the shot had been fired from behind the sugar-cane field, and after these six persons again ran out, the gun was seen in the hands of Raidania. The question, however, is whether on this evidence it can be said, without any reasonable doubt, that the shot, which was fired from behind the sugar-cane field, could only have been fired by Raidania and no one else. We may point out that the prosecution witnesses are all agreed that as the sugar-cane standing in the field was more than a man's height, they could not see the person who had actually fired the shot. The case, therefore, depends upon circumstantial evidence alone. The learned Sessions Judge, in his judgment, says that the accused Raidania was seen in possession of the gun immediately before it was fired, and immediately afterwards. This is not exactly correct according to the evidence of the witnesses. The evidence is that the gun was in the hands of Raidania immediately before these six persons went behind the sugar-cane field. It was again seen in the hands of Raidania when these six persons emerged from behind the field and started running away. But for the period while these persons were behind the field, which may be only a few minutes, nobody saw with whom the gun was and who had fired the shot. This case thus depends upon circumstantial evidence, and we may refer to the principles, laid down in certain authorities where the evidence is entirely circumstantial in nature. The matter was considered at length in Queen-Empress vs. Hosh Nak (1) (XXXIX A. L. J. 416.) which was decided as far back as 1881. The judgment has been reproduced in Allahabad Law Journal of the year 1941, at page 416. The learned Judges observed as follows at page 418 - "the conviction was based upon these facts and upon the unsatisfactory character of the prisoner's defence. " The Sessions Judge writes: "the question now remains, are the facts proved taken with the prisoner's denial of them compatible with a reasonable belief in his innocence. " But this is not the way in which a conviction should be founded upon circumstantial evidence. To proof by circumstantial evidence four things are essential. First - That the circumstances, from which the conclusion is drawn, be fully established. Secondly - That all the facts should be consistent with the hypothesis. Thirdly - That the circumstances should be of a conclusive nature and tendency. Fourthly - That the circumstances should, to moral certainty, actually exclude every hyphethesis but the one proposed to be proved. " Similar principles in different words were laid down in Basan-gouda Yamanappa vs. Emperor (2) (A. I. R. 1941 Bombay 139. ). Beaumont, C. J. at page 142 observed as follows - "in my opinion, the rule is that circumstantial evidence must be consistent, and consistent only with the guilt of the accused, and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. . . . . . . . . . . . . . . . . . . . . . . . . " The learned Judge went on to observe that it was competent to the court to invent possible explanations and to speculate when the accused's statement does not explain the evidence as against him as to the possible hyphothesis that may be made out in favour of the accused. Lastly, we may refer to Sher Mohd. vs. Emperor (3) (A. I. R. 1945 Lahore 27.) where Munir, J. observed as follows at page 29 - "where the evidence against an accused person is, as in the case postulated, only circumstantial, the evidence must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of his guilt. " If we may say so with respect, we entirely agree with the four principles laid down in Hosh Nak's case. These principles have been reiterated in a recent case by the Allahabad High Court in Mohd. Sabir vs. Rex (4) (A. I. R. 1952 All. 796. ). We have therefore to see whether these four tests have been satisfied in this case. It is the fourth test with which we are particularly concerned, namely that the circumstances should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved. The question then is whether it can be said in this case to moral certainty that every other hypothesis is excluded except the one chat the prosecution wants us to accept, namely that the shot was fired by the accused I Raidania. We have evidence that all the six persons had gone behind the sugarcane field, and none of them was visible from the time they went behind the sugarcane field to the time that they went out running again, and when the shot was fired none of them was visible. It seems to us that the mere fact that before these six persons disappeared behind the sugarcane field, and after they came out from behind that field, the gun was seen in the hands of Raidania, would not necessarily lead to the inference that he alone could have fired the shot, and exclude every other hypothesis, namely some one else out of the six might have taken the gun from his hand and fired the shot. We have the evidence of Alladin constable to the effect that originally the gun was in the hands of Sobatia; but soon after the chase was started Raidania had taken it from him. We, therefore, feel that it is not possible to. exclude in this case to moral certainty every other hypothesis but of the guilt of the accused. A gun has been produced in this case by one Gendia Balai P. W. 2. He has come forward to say that the gun was handed over to him by Raidania and he kept it for nine months and then produced in before the police. In the first place, it has not been proved that this was the gun which was seen in the hands of Raidania at the time of the incitent. In the second place, we are not satisfied from the statement of Gendia that it was Raidania who had given him this gun, for he says that he did not know Raidania before that day, and it is hardly likely that a person would entrust a gun to a rank stranger. Further, even if this gun, which has been produced in court, belongs to Raidania, it does not help the prosecution very much, for the hypothesis that some one or other out of the other five might have taken the gun from the hand of Raidania and fired the shot is still not excluded. In this view of the matter, we are of opinion that Raidania is entitled to the benefit of the doubt. We therefore, allow this appeal, set aside the order of the court below, and acquit Raidania. He is in jail and will be released at once if not required in any other connection. . ;