Gobind Gope vs Emperor

Dhavle, J.—Gobind Gope, the petitioner, had been sentenced to three months rigorous imprisonment for being a member of an unlawful assembly with the common object of committing theft of mangoes from the garden of one Muso Mian.

His defence was an alibi at a puja in the house of Jamuna Prasad Sahu (D.W. 4) but this was disbelieved by the trying Magistrate and the Sessions Judge on the ground that the puja was at an end some time before the commission of the offence. Mr. Verma who appears for the petitioner has had no difficulty in showing from the evidence of Jamuna Prasad Sahu and Bhairo Gowala (D.W. 5) that both the lower Courts were in error. The evidence is clear that Bhairo went to Jamuna Prasad's house to call the petitioner after the occurrence.

It is, however, equally clear that the alibi which it was sought to establish by the evidence of these witnesses is by no means perfect, for it leaves open the possibility that the petitioner went to the puja after the commission of the offence.

Mr. Verma's principal point, however, is that the petitioner has not been sufficiently identified as member of the unlawful assembly. The trying Magistrate has observed that the petitioner was identified by three witnesses. These are Latif, Torab and Kalo Mia (P.Ws. 1. 7 and 8). Torab and Kalo claim to have seen from the adda of the orchard in which they were sitting, Latif chstsing the petitioner Gobind and others.

In his cross-examination Torab says that he did not see the chase. He also admits that he did not tell the investigating Sub-Inspector that he had seen the chase, and the Sub-Inspector's evidence is to the same effect. Torab's claim in cross examination that instead of the chase he saw the assault on Latif is not easy to accept because the night was dark and the assault on Latif seems to have bean much farther off from the adda than the chase. Kalo's claim that he saw the chase suffers from the fact that notwithstanding his pretension to the contrary he did not mention it to the Sub-Inspector.

It is also clear that neither Torab nor Kalo mentioned the name of any of the offenders to the Sub-Inspector. They do seem to have picked out Gobind at the test identification before a Deputy Magistrate, but there is nothing in the evidence to suggest that they really did not know the man from before and no attempt has been made to explain why they did not mention any names to the Sub-Inspector. Datif's case is differant. He claims to have found Gobind and another actually plucking mangoes while other members of the unlawful assembly were jpicking them up. But his identification of Gobind is not supported �by any good evidence in view of tho unreliability of Torab and Kalo in the matter, and it is not as if either the trying Magistrate or the Sessions Judge had come to the conclusion that corroboration or no cor-roboration, Latif's evidence was of such kind that it ought to be implicitly accepted in the circumstances of the case. I would therefore allow the application and set aside the conviction and sentence passed upon Gobind Gope.

In admitting the application Eazl Ali, J. issued a rule upon the petitioner to show cause why his sentence should not be enhanced. This rule fails because the petitioner has been able to show that, on the evidence, his conviction itself should not be upheld.

Courtney-Terrell, C.J.

I agree.