1. Ten persons were charged in the Court of the Sessions Judge, of Muzaffar Nagar under Sections 147 and 304, read with Section 149, Penal Code. The charge was that they, on the morning of 18th February 1932, had formed an unlawful assembly and had caused grievous injuries to Ali Ahmad, which resulted in his death. The learned Sessions Judge acquitted six of the accused, convicted four under Section 304, Penal Code, and sentenced them to three years' rigorous imprisonment each. All the four convicted persons appeal to this Court. The accused Gumani had a field in the village of Wilayet Nagar. Adjacent to his field was the field of Ali Ahmad. There was a canal between the fields, from which water was obtained for irrigation. The prosecution alleged that when Husain Ahmad was engaged in taking water from the canal Gumani came up and objected. The result was a quarrel between the two men. Relations on both sides came' up to assist and a marpit took place. In that marpit Ali Ahmad unfortunately was hit on the head with a lathi and died. The first information, report was made at once by Husain Ahmad who was--the learned Judge finds--present throughout the marpit. It is as follows:
Today in the morning water came from the canal in the distributary. I cleaned my drain and began to lead water to my wheat field. The accused came and stopped me from taking the water. When I forbade them from doing so, they beat me with lathis. When Ali Ahmad, my father, Amir Ahmad, my uncle, and Hasan Ahmad, my brother asked them as to why they were beating me, the accused beat them with lathis. They are lying unconscious in the field.
2. The persons named by Husain Ahmad were Gumani, Patram, Man Singh and Jhandu, who are the present appellants. It will be noted that only four names were mentioned in this first information report. No less than ten accused however were charged before the learned Sessions Judge. All the prosecution witnesses gave evidence that all these ten accused were present and took part in the marpit. The learned Judge has rightly found in his judgment, and for good reason, that the prosecution case had been much exaggerated and there were serious developments made in it and further
there can be no doubt in this case that the implication of these six accused Shadi, Sundra, Balla, Narpat, Chhota and Baldewa was an after-thought and the result of a conspiracy to implicate as many persona as possible and to make the occurrence look more serious and also to establish a case of riot.
3. This is a clear finding by the learned Judge that no less than six out of ten of the persons charged had been falsely implicated. The learned Government Pleader, who appears for the Crown in this appeal does not challenge this finding. This is another of those unfortunate cases which occur in this country especially where riots are concerned. A short time ago in the Ranja riot case a Bench of this Court, of which I was a member, laid down certain rules with regard to false evidence. It was there decided that if it was proved that a witness for the prosecution had given false evidence, it was unsafe to rely upon him at all. I can see no reason why this rule of English law--based on centuries of experience--should not be strictly applied in India. The reason for it, is obvious. The prosecution must prove its case and the accused must be given the benefit of any doubt which exists. If a witness has sworn falsely against one accused there can be no certainty that he is not also swearing falsely against another. Where there is no certainty there can be no proof, and there must be doubt. It is more important that the Courts should be a shield for the innocent than a sword for the guilty. Dr. Johnson said "unless civil institutions ensure protection to base a conviction, though false evidence mankind should have in them would be lost." The sure result of failure to observe this rule must be that many innocent persons would suffer. In a case where false evidence is discovered there may be other evidence on which to base a conviction, though false evidence must inevitably damage the whole 'fabric of the prosecution case, yet ho-nest or circumstantial evidence cannot be used to support or corroborate a perjured witness. Such evidence must be itself. to justify a finding of guilty
4. In this case no less than six accused have been falsely implicated. The evidence of those witnesses who depose that these six accused were present and took part in the marpit must therefore be discarded as against all the accused. This affects every witness called for the prosecution. When the people of India, and those responsible for presenting a case before Courts, realize the prosecutions tainted with evidence of this kind have little chance of success the prevailing practice of producing false evidence will be discontinued. The other evidence in this case consists of the admissions of three of the accused that they were present and took part in the marpit. There is also the evidence of the injuries-which certain of them sustained. The admissions however are qualified; they include the assertion that they engaged in the marpit only in self defence, and that the injuries were sustained, while defending themselves against the unprovoked " assault of the complainant and his party. The admissions must be taken as a whole. There is therefore insufficient evidence for conviction in this case. On this ground alone I allow the appeals.
5. There is however another ground for coming to the same conclusion. The learned Judge has found, and I see no reason to disagree with him that the story as told by the prosecution witnesses is wholly false. The first information report, which is set out at the commencement of this judgment, according to the learned Judge, is not correct in any particular. The learned Judge has found that so far from the accused being the initiators of the marpit it was the complainant,. Husain Ahmad, who interfered with. Gumani drawing water from the canal after Gumani had been drawing water for some considerable time. On inspection by the police the field of Gumani was found full of water while there was none in that of Ali Ahmad. He also finds that it was the custom of the village that the first at the canal had a right to continue drawing water from it. He finds that Husain Ahmad had unlawfully interfered with Gumani. when Gumani was lawfully engaged in using the canal. He further finds that when Gumani protested against the interference of Husain Ahmad, Husain-Ahmad shouted to his relations to come to his assistance, that it was only when Gumani saw the other three coming up that he called upon his three relations to come to his help, and then it was that the marpit took place. It is to be noted that some of the accused suffered head wounds. In my opinion these facts entitle the accused to an acquittal. The learned Judge however comes to the conclusion that as one of the instigators of the marpit was killed the accused exceeded their right of private defence and were therefore guilty. I cannot agree' with the learned Judge on his interpretation of the law. The aggressor, on the finding, was undoubtedly Husain. It was he who called up his relations for the purpose of attack. All four were armed with lathis Lathis are deadly weapons. When peaceful citizens are attacked by a body of men armed with such weapons it cannot be said that the right of private defence is exceeded, if those attacked in their turn use similar weapons in their defence; nor can it be said if in using those weapons one of the aggressors is, killed, that that would necessarily be exceeding the right of private defence. If a man is attacked by another armed with such a weapon he cannot be sure that the intention of the aggressor is not to kill. He therefore is entitled in his own defence to take every precaution that he is not killed, even if that entails killing his adversary. These cases ought not to be weighed too nicely. The complainant and his party, according to the finding of the learned Judge with which I see no reason to disagree were entirely responsible for what happened. It therefore appears to me that apart from the unfortunate position in which the prosecution finds itself as regards the witnesses called, the appeal ought to be allowed. I therefore on both grounds allow the appeals, set aside the convictions and sentence? and direct that the accused be set at liberty. The bail bond of those of the accused who are on bail will be cancelled. This case again invites attention to the fact, admitted by every experienced observer that the oath at present administered in the Courts completely fails in its object. Another oath with the sanction of religious belief ought to be substituted for Indian witnesses.