Deodhary Pandey vs Emperor

Jwala Prasad, O., C.J.—The petitioner Deodhary Pandey has been convicted u/s 110 of the Cr. P.C. and directed to execute a bond of Rs. 500 with two sureties of Rs. 250 each to be of good behaviour for one year, or in default to undergo rigorous imprisonment for one year.

On 4th September 1923 the Sub-Inspector of Basantpur submitted to the Magistrate two reports: one against the petitioner Deodhary Pandey and the other against one Adit Singh for taking action u/s 110, Clauses (a)(d) and (f) of the Cr. P.C.

The Magistrate drew up two separate proceedings under the aforesaid section: one on the 15th September 1923 against Adit Singh (Case No. 130 of 1923) and the other on the 17th September against the petitioner (Case No. 141 of 1923). Both the cases were, however, amalgamated by order. No. 9 of the Magistrate, dated the 28th September 1923, and thus the petitioner and Adit Singh were jointly tried and convicted by a single judgment passed by the Magistrate on the 4th February 1924. The petitioner Deodhary Pandey appealed to the Sessions Judge and his appeal was dismissed by the Sessions Judge of Saran on the 25th February 1924. The petitioner has now come to us in revision.

Mr. Abdul Aziz on behalf of the petitioner contends that the petitioner has been materially prejudiced by his being jointly tried with Adit Singh, that the evidence adduced against the petitioner is not sufficient in law for his conviction of the charge u/s 110 and that the Courts below omitted to consider the defence and plea of the petitioner.

Now the charge against the petitioner as laid in the proceeding is in terms of Section 110, Clauses (a)(d) and (f), that he is by habit a thief and house-breaker and habitually commits mischief and is so dangerous and desperate that his being at large without security is hazardous to the community. The petitioner denied being by habit a thief or burglar, and asserted that he bore good character and that he was falsely implicated in the case at the instigation of his enemies Asharfi Singh and Hafizuddin. Mr. Abdul Aziz contends that the accused''s plea of enmity with the aforesaid persons has not only been proved by the defence but has also been admitted by the prosecution witnesses and found to be true by the Courts below but that the Courts below omitted to take into account this enmity as vitiating the evidence of the prosecution and as having been instigated and influenced by Asharfi Singh and Hafizuddin. The prosecution sought to establish the charge against the accused by oral and documentary evidence.

The documentary evidence consists of several first informations (Exs. 1 to 17) collected by the Sub-Inspector of Basantpur for a period of a year and a half ranging from 1922. In none of the first informations the petitioner Deodhari was suspected. Only in some of them Adit Singh, who was tried jointly with the petitioner, was suspected, but we have nothing to do with Adit Singh. The Sub-Inspector (P.W. No. 21), however, says that Deodhari was suspected in the cases of which the first informations are Exs. 1, 2, 3 and 4. Of these Exs. 3 and 4 were not drawn up by him but were drawn up by Inspector Ziauddin who has not been examined. In these first informations the petitioner was not named as having been suspected, and the Sub-Inspector refused to refer to the diary and to disclose the source of his information. Consequently the information upon which his knowledge is based cannot be tested. Though in the first information (Ex. 9), dated the 14th July 1923, lodged by Ganga Singh (P.W. No. 31) about his house-breaking, none was suspected, yet in the evidence in the present case Ganga Singh says that Deodhari had come to purchase a bullock a day before the burglary was committed and a danta was shown to him by a Constable. Karim Mohammad (P.W. No. 32) tries to support Ganga Singh. But in cross-examination both these witnesses say that they did not state to any officer about Deodhari having come to Ganga Singh''s house for purchasing a bullock. Therefore, the evidence as to the complicity of the petitioner with the house-breaking in question is unreliable.

Exhibit 10, dated the 14th July 1923 is a first information of a theft lodged by Sahadeo Dubey (P.W. No. 51) through the son of chowkidar. Sahadeo says that the people identified a danta as belonging to Deodhari. In cross-examination he says that he does not remember the name of any parsons who identified the danta as belonging to the petitioner nor does he know the names of persons who call him thief. P.W. No. 2, dafadar of Mustafabad, is a tenant of Asharfi and in the letter he sent to the Sub-Inspector he did not mention the fact of the danta having been left behind by Deodhari and of his having any suspicion against him. P.W. No. 54 called to corroborate P.W. No. 2 says that he saw the danta at the door of the complainant. Still it is strange that the complainant did not mention it to the Police or suspect Deodhari as having committed the theft. Therefore, this story for connecting the accused Deodhari with the theft in question is suspicious.

Exhibit 15, dated the 4th November 1922, is an information lodged by Kulanjan Rai of a sendh having been cut in the house of Babban Tewari and the thieves having entered the room where his son was sleeping, but the soil having got up raised a halla, the thieves ran away without stealing anything. The chowkidar says in the first information that nobody was identified and that he suspected nobody. Babban Tewari (P.W. No. 27), however, in his evidence says that he recognized Deodhari amongst the thieves and he gave a description of it. He also says that he told of it to the Police. This is inconsistent with the first information lodged by the chowkidar and is not corroborated by any evidence on the record.

Exhibit 17, dated the 1st January 1922, is another information lodged by Bahadur Mian chowkidar (P.W. No. 20) of a sendh having been cut in the house of Hafizuddin of Govindpur in which it is stated that the thieves were not recognized although they were chased by the villagers, and he did not suspect anybody. The writer Head Constables like the Sub-Inspector refused to refer to the diary and to disclose the information upon which the petitioner Deodhari was suspected in any of the aforesaid cases. Ganga Singh, writer Head Constable, goes so far as to say "I do not want to refer to my diary as the accused would be entitled to see it." It may be within the right of the Police Officers not to refer to a diary, but the accused is entitled to the benefit of their refusal to refer to the diary and to disclose the source of their information. Their evidence, therefore, does not prove anything against the petitioner.

It is obvious that the cases referred to in the first informations filed in the case do not afford any tangible proof against the petitioner. The one or two cases sought to connect the petitioner with the occurrence rest upon the flimsy identification of a danta (F.I. Exs. 9 and 10), having been left behind by the petitioner in the course of commission of offences and the statement of Babban Tewari is inconsistent with the first information lodged (Ex.15). To Crown all, Hafizuddin (P.W. No. 29), who is stated by the accused to be at the bottom of the case, has examined himself as a witness. He is the sworn enemy of the petitioner. He had a market at Mustafabad, and a rival market was opened at Gopalpur by Mahendra Tewari and Bahadur Tewari, which led to a proceeding u/s 144 of the Cr. P.C. in which the petitioner played an important part against Hafizuddin. Hafizuddin tries to connect Deodhari with the theft in his house of which information (Ex. 30) was given by chowkidar Bahadur Mian (P.W. No. 30). The chowkidar met him before going to the thana. He did not disclose to the chowkidar that he had suspected Deodhari, and the chowkidar stated in his first information that the people chased the dacoits but nobody was identified. Had he suspected Deodhari, certainly the Sub-Inspector would have searched, the house of Deodhari, but he admits that his (Deodhari''s) house was not searched.

This is the summary of the documentary evidence. The learned Sessions Judge after reviewing the first informations summed them up thus:

It would appear from what has been said above that only in a few cases the accused Deodhari was suspected during the course of investigation.

The few cases referred to by the learned Sessions Judge have already been noticed, namely, Exs. 9 and 10, which rest upon the identification of a danta of Deodhari having been left behind in the course of commission of the offences. It has already been shown that the evidence is flimsy, particularly when the danta affair was not mentioned in the first information nor was any suspicion expressed against the accused in the first information.

Therefore it may now be safely stated that in spite of the investigation regarding the history of the accused, Deodhari from the year 1922 no tangible evidence of any reasonable suspicion against, Deodhari has "been disclosed in any of the cases. The case, therefore, rests entirely upon the oral evidence in the case.

The prosecution examined 57 witnesses including the Sub-Inspector Ganesh Narain Singh. (P.W. No. 21) and two writer Head Constables Ganga Singh and Mohammad Nazeer (P. Ws. Nos. 22 and 23). These witnesses did not come from the village of the accused. The petitioner Deodhari examined 70 witnesses of his own village and of neighbouring villages.

Of the 57 prosecution witnesses only three or four seem to be zemindars, namely, P. Ws. Nos. 10, 20 and 29. P.W. No. 10 does not give his income. P.W. No. 20 of Chitauli, which belongs to Asharfi, is a President of Union No. 5 and pays revenue of Rs. 225 only. He is a debtor of Asharfi, the enemy of the petitioner, to the extent of Rs. 700 under a zerpeshgi deed. He says that he did not see the accused Deodhari committing any theft. P.W. No. 29 is Hafizuddin another enemy of the petitioner. P. Ws. Nos. 2 and 47 are Presidents of Unions. P. Ws. Nos. 28, 30, 55 and 57 are chowkidars; P.W. No. 52 is a dafadar, P.W. No. 21 is a Sub-Inspector of Police; P. Ws. Nos. 22 and 23 are writer. Head Constables and P. Ws. No. 43 is a retired Sub-Inspector. The remaining 42 prosecution witnesses are cultivators, two of whom are also shop-keepers and one a trader. They do not give their income and do not seem to know much about the petitioner. Out of the four chowkidars, witnesses Nos. 55 and 57 give evidence only against Adit Singh, and not against the petitioner. P. Ws. Nos. 28 and 30 prove only the first information and do not show any personal knowledge.

Out of the two Sub-Inspectors P.W. No. 43 is a retired Sub-Inspector and does not know the accused by their names or faces and does not know the persons who called the accused thieves. The Sub-Inspector P.W. No. 21 has no personal knowledge and gives a number of cases in which the says that the accused Deodhari was suspected. Those cases have already been dealt with as not proving anything substantial against the petitioner Deodhari.

Asharfi, the petitioner''s enemy, is the proprietor of Chitauli. Hafizuddin is the proprietor of Mustafabad. Govardhan Sahu of Govindpur lives in the milkiat of Asharfi as admitted by P.W. No. 15, and Hafizuddin is a resident of that village. P. Ws. Nos. 1, 3, 11 to 14 and 29 come from village Govindpur; P. Ws. Nos. 20, 21,40,41. and 42 from Chitauli, P. Ws. Nos. 2 and 16 from Damri and they are tenants of Asharfi the enemy of the petitioner; P. Ws. Nos. 6 to 8 and 10 and 17 from Mustafabad of which Hafizuddin is a malik and pattidar. Their evidence is hearsay. P.W. No. 15 comes from Sersan.

P.W. No. 1 holds land under Hafizuddin, the enemy of the accused. He has no concern with the accused or his village and admits that he has no personal knowledge that the accused are habitual thieves and associates, nor has he ever seen them committing any theft.

P.W. No. 2 is a tenant of Asharfi and has dispute with Dhao Kuer''s daughter, a relation of the petitioner. He admits that Asharfi, another enemy of the petitioner, is one of his maliks. He says that there was.a burglary in his house about 5 or 6 months ago; information was lodged at the thana through chowkidar. In that information Deodhari is not named as an accused, or as a suspect. His suspicion now against Deodhari in connection with the theft in his house is obviously due to his personal grudge with the relation of Deodhari and to the inspiration from Asharfi, his malik and an admitted enemy of the petitioner. On the other hand, he admits that he has no concern with the petitioner or his village and is, therefore, not competent to speak of the petitioner''s character.

P.W. No. 3 of Gopalpur is also under the influence of Hafizuddin. His evidence, therefore, that in the theft in the house of Hafizuddin he recognized the petitioner Deodhari by voice is suspicious, particularly when he says that he does not go to Deohari nor does he talk with him. The recognition by voice is not sufficient, and he is, therefore, not a competent witness.

P.W. No. 4 is a hearsay witness and says that he had not seen the accused committing theft and had never told the Sub-Inspector of his suspicion against the accused.

P.W. No. 5 says that he had not heard from anybody that Deodhari was a thief nor had he seen him committing any theft. He suspects him to be a thief simply because whenever the petitioner comes to his village there is some occurrence.

P.W. No. 9 has a shop at Mustafabad of which Hafizuddin is a thicadar. He is a sub-tenant of Ali Hasan (P.W. No. 8). He also has not seen the accused committing any theft. His evidence is hearsay.

P.W. No. 11 of Govindpur gives vague evidence. P.W. No. 12 also of Govindpur admits himself to be a bhaiband of Hafizuddin. His evidence that he recognized the petitioner by his voice at the theft in the house of Hafizuddin is unacceptable and is inspired by Hafizuddin. Similarly, P.W. No. 13 says that he calls Hafizuddin a brother inasmuch as he lives in the same village Govindpur.

P.W. No. 15 has taken a house at Govindpur belonging to Govardhan Sahu who lives in the milkiat of Asharfi. He gives the incredible story that a year ago he saw the petitioner taking away a pair of shoes from a cobbler''s shop, especially when he did not tell this to anyone.

P. Ws. Nos. 18 and 19 speak of theft in the house of P.W. No. 19 Sobrati. They are of Govindpur. P.W. No. 19 is a tenant of Mahendra Tewari; whereas he says that he did not suspect anybody of the theft in his house which took place only 3 or 4 days before he gave evidence in the case; P.W. No. 18 says that the petitioner was suspected. Their evidence is unacceptable.

P.W. No. 24 admits that Mathura Sahu is his zemindar. He gives a vague idea of the reputation of the accused and says that he did not previously state anything about the character of the accused. He goes so far as to admit that he has been "called by the dafadar and chawkidar to depose-that the accused are thieves."

The remaining witnesses that have not already been commented upon come from distant places and do not seem to say anything specific against the petitioner. In fact, they do not seem to have any personal knowledge of the character of the accused. Their evidence does not prove the case of the prosecution.

The oral evidence on behalf of the prosecution is not satisfactory and is obviously due to the combination of Hafizuddin and Asharfi, the enemies of the petitioner.

Out of the 70 witnesses examined on behalf of the defence 30 are cultivators, namely, D. Ws. Nos. 14, 18, 21, 24, 25, 27, 28, 29, 30 to 46, 49, 52, 55, 56, 58 and 59. Of these D.W. No. 18 is also a Pandit and 29 a Vaidya. D. Ws, Nos. 47 and 54 are traders, having properties yielding a very large income besides lands in their own cultivation. They are very respectable and have ample opportunities of knowing the character of the petitioner.

D.W. No. 1.--He is a zemindar and cultivator owning property with respect to which his name is entered as proprietor in register D of the Collectorate. He lives only ten bighas off the accused''s house and goes to the accused Deodhari Pandey constantly. He (Deodhari) is said to be a priest and a literate man.

D.W. No. 4 is a zemindar and cultivator having both zemindari interest and raiyati land, and pays Rs. 8 as chowkidari tax.

D.W. No. 5 is a zemindar and ex-President of Union. His income is said to be Rs. 6,000 from zemindari, having 25 bighas as zerait.

D.W. No. 6 is a zemindar with an income of Rs. 1,500. His zemindari is from the time of his ancestors.

D.W. No. 7 is a zemindar having an income of Rs. 3,000 a year.

D.W. No. 8 is a zemindar having an income of Rs. 800 a year and 50 bighas of zerait land. He pays Rs. 5-8-0 as chowkidari tax.

D.W. No. 9 is a zemindar and cultivator with an yearly income of Rs. 500 and has 30 to 35 bighas of zerait land.

D.W. No. 10 is a zemindar having an income of Rs. 1,000 a year and 150 bighas of zerait. He is the President of Union No. 2. He has also lent out Rs. 8,000 to 9,000.

D.W. No. 11 is a zemindar having an income of Rs. 500 a year and also zerait land. He pays Rs. 6 as chowkidari tax.

D.W. No. 12 is a zemindar and cultivator with an income of Rs. 175 a year and 25 bighas of zerait.

D.W. No. 13 is a zemindar and cultivator with an income of Rs. 800, besides 80 or 90 bighas of zerait land. He also pays chowkidari tax.

D.W. No. 15 is a zemindar and cultivator with an income of Rs. 400 a year and 45 bighas of kasht.

D.W. No. 16 is a zemindar and cultivator with an income of Rs. 500 and 60 bighas zerait. He has lent Rs. 2,500 on zarpeshgi. D.W. No. 17 is a zemindar and cultivator with an income of Rs. 700 and 75 bighas zerait and has a monetary transaction of Rs. 4,000 to Rs. 5,000.

D.W. No. 19 is a zemindar and cultivator with an annual income of Rs. 3,000 and 150 bighas zerait.

D.W. No. 20 is a zemindar with an income of Rs. 400 and 24 bighas of zerait.

D.W. No. 22 is a zemindar and cultivator with an income of Rs. 1,600 and considerable zerait.

D.W. No. 23 is a cultivator and zemindar with an income of Rs. 500 and has 30 bighas of zerait.

D.W. No. 26 is a zemindar and cultivator and a mahajan. His annual income is Rs. 1,400; besides he has 150 bighas of zerait and 150 bighas of kasht.

D.W. No. 48 is a zemindar and cultivator, having an annual income of Rs. 800 and 60 bighas of land, Rs. 4,000 in zarpeshgi and Rs. 3,000 in mahajani.

D.W. No. 50 is a cultivator and zemindar having a business of Rs. 5,000 and 50 bighas zemindari.

D.W. No. 51 is a cultivator and zemindar with an annual income of Rs. 500.

D.W. No. 53 is a cultivator and zemindar.

D.W. No. 57 is a cultivator and zemindar, having an annual income of Rs. 8,000 besides kasht.

D.W. No. 60 is a cultivator and zemindar, having money-lending business of Rs. 10,000 to Rs. 12,000.

D.W. No. 61 is a zemindar and kashikar having an annual income of Rs. 500 and 25 bighas of zerait.

D.W. No. 62 is a zemindar and kashtkar.

D.W. No. 64 is a zemindar and, cultivator.

D.W. No. 65 is a zemindar and cultivator.

D.W. No. 66 is a zemindar and cultivator, having an annual income of Rs. 1,000 and 70 bighas of zerait.

D.W. No. 70 is a cultivator and zemindar.

The above is the summary of the evidence on behalf of the prosecution and defence. Dealing with this evidence the Magistrate says as follows:

Accused Deodhari states that Asharfi Singh and Hafizuddin are at the bottom of the case. The former he says bears him ill-will as he helped Mathura Sahu with whom Asharfi was fighting a case regarding the possession of the village Chitauli and the latter for helping his opponents Mahendra Tewari and Bahadur Tewari with whom he had a dispute regarding a market in respect of which there had been a proceeding u/s 144 Cr. P.C.

The plea of the accused is not at all tenable against the overwhelming evidence of specific instances which even ignoring the evidence of general repute is sufficient to prove the charge against them. The witnesses examined by the defence do not at all go to rebut the evidence adduced by the Crown to prove the specific instances in which the accused have been suspected and there is no reason whatever to suppose that such evidence had been manufactured by the enemies of the accused. The defence witnesses have come forward to give the accused good character but when cross-examined they say that they do not know what the accused do and where they go at night.

The above observation of the Magistrate is with respect to the case of petitioner Deodhari Pandey as well as Adit Singh jointly tried with him. It is, therefore, vague and general and does not purport to deal with the special pleading of the petitioner set forth in the words of the Magistrate quoted above Adit Singh dropped out when the petitioner''s case was dealt with by the Sessions Judge, who disposes of the evidence as follows:

It is submitted that the witnesses come from about 12 different villages but none from Sisai and some of them are connected with Asharfi Sah. It is in the evidence of Gaya Singh (D.W. No. 70) that Mathura and Asharii are on bad terms in taking possession of a village and he gave Rs. 10 or Rs. 20 to accused Deodhari to help them in taking possession of the village on behalf of Mathura''s widow. It is clear, therefore, that wherever force was necessary Deodhari who is a pahalwan was, engaged. It is also said that Hafizuddin had litigation with Mahendra Tewari regarding a market and there was a Section 144, Cr. P.C., case and Deodhari was engaged by Mahendra. It is in the evidence of D.W. No. 62 that Hafiz asked Deodhari not to disturb the mela and this was the cause of the quarrel. P.W. No. 2 a President of the Union, says that there was a burglary 5 or 6 months ago and the accused was suspected and that he is the leader of a gang of bad characters. He is not concerned with Hafizuddin who, it is said, is annoyed with the accused for taking the side of Mathura and Mahendra. P.W. No. 8 proves a theft at the house of Noor Mohammad and Hafizuddin in which the accused was suspected. P.W. No. 12 says that he heard the voice of the accused after theft in the house of Hafiz. D.W. No. 14 corroborates him. D.W. No. 15 says that people say that the accused is a thief. A year ago he saw him taking away a pair of shoes from a cobbler''s shop. It is in the evidence of the witnesses from the neighbouring villages that Deodhari is a thief. It is in the evidence of some of them that whenever Deodhari goes to the village there is a theft. Some of the prosecution witnesses ate zemindars, Presidents of the Union, cultivators and shopkeepers and there is no adequate ground for disbelieving their evidence.

Regarding the absence of any witness from village Sisai, it is submitted by the learned Public Prosecutor that Sheodhari Singh (D.W. No. 65) malik of Sisai is a Bhuinhar and a Receiver of stolen properties and he is helping the accused, though this is denied by him, and it is for this reason that the defence witnesses, most of whom are petty Babhan zemindars--70 witnesses in all of Sisai and neighbouring village Sisain, Chitauli, Dudhra, Chainpur Gore Kothi, Kursaul, Lodipur, Karanpura, Barahiatola, Bewal, Pipra, Ajayan, Pokhra Lehaji, Serai, Mahammadpur Madar Kalan, Bagahin, Serain, Sikandarpur, Jagarnathpur, Palezpur, Nainpura, Bangra, Saidpur, Hulas Chapra, Parsnowli--have come to give evidence of good character to the accused. Only a few are cultivators and Brahmins and I do not consider their evidence reliable. It is for this reason that the prosecution has not been able to examine any witness from Sisai.

In the circumstances and in view of the nature of evidence adduced on behalf of the prosecution I am satisfied that the charge against the accused has been established. The defence witnesses appear to have combined together to give a certificate of good character to the accused and are not reliable. In my opinion the charge has been brought home to the accused and the learned Deputy Magistrate was right in ordering the appellant to execute a bond.

The learned Sessions Judge does not clearly state that he accepts the contention of the Public Prosecutor that the malik of Sisai is a Receiver of stolen properties. He refuses to accept the evidence of the defence witnesses upon the ground that only a few of them are cultivators and Babhans and that they have combined together to give a certificate of good character to the accused. It may perhaps be said that he impliedly accepted the Public Prosecutor''s explanation that the malik of Sisai is a Receiver of stolen properties and consequently the witnesses of the petitioner''s village as well as of the neighbouring villages have come forward to give evidence in favour of Deodhari. No such suggestion seems to have been made before the Magistrate, nor does the Magistrate find that the malik of Sisai was a Receiver of stolen properties. He discarded the defence witnesses upon the ground that "they do not know what the accused do and where they go at night." The learned Sessions Judge does not refer to any evidence for his view that the malik of Sisai is a Receiver of stolen properties, nor does he show that the said malik had any concern with the 24 villages besides Sisai from where the defence witnesses come. The Police Officers examined in this case as witnesses Nos. 21, 22 and 23 do not say that the malik of Sisai is a Receiver of stolen properties. The Sub-Inspector(P.W. No. 21) mentions Ganraj Lohar and Gopi Lohar of Sisai, Mog Ahir of Chainpur, one or two Ahirs of Hariharpur and one Ahir of Afrad as the associates of Deodhari Pandey. He does not mention the name of Sheodhari Singh, malik of Sisai as an associate or as a Receiver of stolen properties. I have read the evidence and I do not find any witness stating that Sheodhari Singh was a Receiver of stolen properties and in fact as observed above the Sessions Judge does not refer to any evidence on the point. In the second place, the witnesses are not from Sisai alone, but are also from 24 other neighbouring villages with which Sheodhari''s connection has not been proved. Therefore, the evidence of these defence witnesses has not been disposed of by the Magistrate or the Sessions Judge and no reason has been given except the aforesaid one which appears to be purely imaginary and not based upon any evidence, for discarding the evidence of 70 witnesses on behalf of the accused coming from his own and the neighbouring villages. The learned Sessions Judge says that these witnesses are only "a few cultivators and Babhans" and assigns this as a reason for not accepting their evidence as against the witnesses of the prosecution whom he calls "zemindars, Presidents of Unions, cultivators and shop-keepers." The Magistrate does not go so far and does not say that the defence witnesses are only a few cultivators and Babhans. In this also the learned Sessions Judge''s view is against the record as the summary of the evidence already given in this judgment will show.

Most of the witnesses if not all, are under the influence of Asharfi, Mathura and Hafizuddin. Therefore, the evidence on behalf of the prosecution is not independent. The prosecution witnesses are mostly ordinary cultivators. They do not disclose, their income or status and come from different villages having no concern with the accused or his village, whereas the witnesses for the defence have already been shown to be men of substance, their credit not having been shaken in the long cross-examination. The learned Sessions Judge in comparing the witnesses for the prosecution with those of the defence has made a remark in the inverse order. When he says that the witnesses on behalf of the accused are only a few cultivators and Babhans he says what would apply, upon the record, to the witnesses for the prosecution, and when he says that the witnesses for the prosecution are zemindars and Presidents of Unions, cultivators and shopkeepers, he says what would virtually apply to the witnesses for the accused. There are Presidents or Ex-Presidents of Unions on behalf of both the parties. The learned Magistrate has not differentiated the witnesses of the prosecution and the defence on the above ground stated by the learned Sessions Judge. He has not acted upon the evidence of the defence on the ground that the prosecution has proved specific instances against the accused. Whereas the learned Magistrate is wrong in holding that specific instances against the accused Deodhari have been proved, the learned Sessions Judge is equally wrong in re-marking that the witnesses for the accused are mere cultivators and Babhans, whereas those for the prosecution are respectable witnesses. If the credibility of the witnesses depends upon their respectability and status in life, the summary already given in this judgment will show that the witnesses for the defence are entitled to greater weight than those on behalf of the prosecution. Those witnesses are from 25 villages, whereas the prosecution witnesses come from only 12 villages. The witnesses for the defence come from the village where the accused lives as well as from the neighbouring villages as admitted by the learned Sessions Judge, and those for the prosecution come from 1.2 distant villages. They had, as already shown, no opportunity of knowing the life and character of the accused, whereas the witnesses for the defence have had ample opportunity of knowing the accused. Although they may not be living with the accused in the night time, they live in close neighbourhood and vicinity of the accused to know of his movements and character. The learned Sessions Judge has omitted to consider the evidence on behalf of the defence and has thus fallen into an irregularity which vitiates his decision. He has also either misread or misapprehended or has not at all read the evidence of the witnesses on the record or else he would not have fallen into the error of saying that the witnesses for the defence were only cultivators and Babhans and those on behalf of the prosecution were zemindars and Presidents, etc. There are 38 substantial zemindar witnesses on behalf of the petitioner as against 3 or 4 on behalf of the prosecution of minor importance who do not disclose their income and are under the influence of Asharfi and Hafizuddin, the enemies of the petitioner. The proportion of zemindar witnesses on behalf of the defence is enormously greater than on behalf of the prosecution. I do not think the learned Sessions Judge applied his mind to the evidence on the record. He seems to have simply taken the points from the decision of the Magistrate and to have amplified them by his own imagination without having any recourse to the record. To the same indifference to evidence might be attributed his tacit acceptance of the argument of the Public Prosecutor that the witnesses of the accused''s village and of the neighbouring villages must not be believed, inasmuch as the malik of the accused''s village Sisai is a Bhuinhar and Receiver of stolen properties. Except what may possibly have been contained in the Police diaries and reports, which the Police Officer, refused to disclose in their evidence there is nothing in the evidence either of the Police or the witnesses to justify that Sheodhari Singh mailk of Sisai, is a Receiver of stolen properties. There is nothing to show that he is the malik of all the 25 villages or has any concern with them. There is absolutely no specific instance of any theft having been committed by or of any theft or dacoity or mischief in which the accused was seriously suspected in the first informations or during the course of the investigation of the various cases referred to in the first information filed in this case, the evidence of general reputation is of a very vague character unsupported by any reason. It is based only upon suspicion. Besides, such evidence comes from the unreliable quarters, and the enmity of the accused Deodhari with Asharfi, Mathura and Hafizuddin has been fully established which affords ample reason for most of the witnesses who are under their influence, to have come forward to depose against the accused Deodhari.

Therefore, the decision of the Courts below, particularly of the learned Sessions Judge is vitiated by his omission to consider the evidence of the defence and to have misread or misapprehended the evidence in the case. We are concerned with Deodhari alone and the evidence so far as Deodhari is concerned. We are not concerned with the other accused Adit who was tried jointly with Deodhari. The Police and the prosecution witnesses, no doubt, say that they are associates, but the evidence has not established any association between Deodhari and Adit, residents of two different villages, to commit theft, extortion or cheating. Under Clause (4) of Section 117 two or more persons may be jointly tried where they have been associated together in the matter under inquiry. I, however, fail to find any credible information or evidence regarding the association of the two persons Deodhari and Adit. The joint trial in this case probably proceeded upon the Police report of the two accused being associates; yet the evidence led in Court failed to substantiate any association, and at the trial where 17 first informations were put in and a number of witnesses examined no specific instance of both the accused being jointly concerned in any theft, robbery or extortion, mischief, etc., was established. It is, therefore, contended on behalf of the petitioner that the consideration of the evidence at one and the same time against both the accused by the Court below has prejudiced the petitioner. I, however, do not rest my decision upon this technical ground alone, though I consider it to be a substantial one; I rest my decision upon the more substantial ground of there being no independent evidence to prove the charge against the accused u/s 110, Clauses (a),(d) and (f) and because the evidence given is vague, general and of hearsay character and not legally admissible for the purposes of proving a charge u/s 110, Clauses (a), (d) and (f). The accused Deodhari is a cultivator of admittedly 8 or 9 bighas of land and is a wrestler and adds to his income by wrestling. He is regarded by the co-villagers as well as those of the neighbouring villages as a man of good character and his neighbours being men of substantial status in life do not suspect him to be a man of bad character and dangerous to the community. Nothing has been shown against these witnesses why their evidence should not be accepted. Upon their evidence it is impossible to hold that the accused is by habit a robber, house-breaker or thief or he habitually commits mischief, extortion or cheating or is so desperate and dangerous as to his being rendered at large without security would be hazardous to the community. The evidence shows that he is somewhat meddlesome and has identified himself with the local disputes and has thus become the enemy of Mathura, Asharfi and Hafizuddin. The learned Sessions Judge puts it thus: "It is, therefore, clear that wherever force was necessary Deodhari, who is a pahalwan was engaged." The admitted enmity of these persons with the accused Deodhari has not been considered by the Courts below which accounts for the prosecution witnesses having deposed against him.

For all those reasons I would set aside that order of the Courts below and cancel the order requiring Deodhari to give security for being of good character u/s 118 of the Cr. P.C.

The evidence in this case is voluminous. The Courts below, particularly the learned Sessions Judge, dealt with it in a general and vague manner. Their judgments did not afford much assistance to this Court and I had to scrutinize the whole evidence. Though I tried to go through it carefully, I am not sure if on account of the scribbling in the manuscript writing thereof I have not committed any slip or error, but the summary given by me is substantially correct.