Gurudas Mandal vs Emperor

Rowland, J.—The petitioner has been convicted u/s 193, Indian Penal Code, and sentenced to one month''s simple imprisonment and a fine of Rs. 300. His appeal has been dismissed by the Sessions Judge.

The petitioner was Sub-Assistant Surgeon at Bhagmundi Hospital in Manbhum District. On the afternoon of 3rd December, 1928, a riot occurred which led to criminal proceedings and one of the accused was Wasi Ahmad Khan. His defence was an alibi, that is to say, he assented that at about 5 p. m. on the date in question he was in bed at his house Buffering from dysentery and was professionally visited by Dr. Gurudas Mandal, the present petitioner. His house is close to the Bhagmundi Hospital and is about four miles from the place of occurrence. The time of occurrence according to the prosecution was about 5 p. m. The petitioner was a witness for the prosecution to depose regarding certain injuries on persons whom he had examined after the riot, In cross-examination he stated that on 3rd December, 1928, at about 5 p. m. he had visited Wasi Ahmad Khan as a patient to treat him for dysentery and found him to have slight fever. This deposition was given on two dates, 16th February, 1929, and 1st March, 1929. He brought his register of private patients which was taken in evidence. The riot case ended in conviction of Wasi Ahmad Khan, among others, the Court not believing the alibi set up in face of the direct evidence. The prosecution of the petitioner was ordered with the result as stated above.

The Magistrate was of opinion that accused could not have paid a visit to Wasi Ahmad Khan at 5 p. m. because Wasi Ahmad Khan was at that time elsewhere committing a riot. He also held that the accused paid a visit to Wasi Ahmad Khan, but the time of this visit was 8 or 8-30 p.m., the Writer Head-Constable of Baghmundi having deposed that he had seen accused at 8 or 8-30 p. m. who told the witness that he was going to see Wasi Ahmad Khan on a professional call.

The Sessions Judge found that the evidence regarding the time of riot was not exact and that the riot might have taken place at 3 p. m. or at any time between that and 5 P. m. and that it was possible for Wasi Ahmad Khan after taking part in the riot to get home by 5 p. m. The Sessions Judge says clearly "there can be no doubt, as far as all this evidence is concerned, that Wasi Ahmed Khan could have got back by 5 p. m."

But the Sessions Judge upheld the conviction on a consideration of the evidence of the Writer Head-Constable holding that the time of the accused''s visit to Wasi Ahmad Khan was 8 or 8-30 p. m. and that there was only one visit; therefore, the alleged visit at 5 p. m. was false.

Substantially the defect in the decision is that there is no evidence that there was only one visit. The reasoning of the Sessions Judge by which he comes to the view that there was only one visit is a reasoning from probabilities. In a case like this reasoning from probabilities cannot take the place of evidence.

The Sessions Judge has said that it is improbable that accused paid two visits and that he has not said any where that he did pay two visits. It may be improbable; but if the paying of two visits was a possibility it was for the prosecution to prove by evidence that it was not a fact. The prosecution had sought to prove that it could not be a fact inasmuch as Wasi Ahmad Khan was four miles away at 5 p. m. and this evidence was accepted by the Magistrate; but the Sessions Judge had not accepted this evidence and has held that it is not proved that Wasi Ahmad Khan was else where at 5 p. m.

The learned Assistant Government Advocate has suggested that the Sessions Judge has not taken a correct view of the evidence of, the prosecution witnesses as to the time of riot and that it ought to have been held that the riot was at 5 p. m. and that Wasi Ahmad''s participation in it definitely disproves his medical examination at 5 p. m. I do not, however, think that in revision I ought to re-open a finding favourable to the accused at which the Sessions Judge has arrived on the evidence.

The view that I take of the case as a whole is that if the prosecution could prove that at 5 p. m. Wasi Ahmad Khan was four miles away and could not at that hour have been examined by the accused that evidence and finding would have supported the conviction. And the probabilities set out in the judgment of the Sessions Judge would have been relevant considerations in aid of that evidence and finding. But when the Sessions Judge had held against the prosecution on that point the materials that were left are not sufficient in law to exclude the possibility of the deposition of the accused having been substantially true.

The result is that the Rule is made absolute and the conviction and sentence are set aside an the fine, if paid, is to be refunded.