The first informant in this case one Kanjhe Kolhi used to reside in his own village in deh Waghirjee taluka Matli which is at a distance of about six miles from the Matli Police Station alongwith his son Tikam and his daughter Shrimat Ajoo. This Shrimati Ajoo was married to one Harichand but, according to the prosecution case, she was divorced by Harichand about six or seven months before the incident took place and all the appellants in this case are related to this Harichand except appellant No. 3 Chaggan who is stated only to be his friend, although Harichand himself is not an accused person in the case. After the divorce was given it would seem that Harichand alongwith his own party which means, mainly, the appellants in this case demanded that he be paid the expenses which he had incurred upon the marriage and the first informant on the contrary complained that he had been insulted by the fact of the divorce the whole matter it seems was reported to the Panchayat and the respectable man of the neighbourhood, namely one Ch. Abdul Aziz Zamindar, but it does not transpire that any settlement took place. On the contrary the implication is that the quarrel went on and is put forward by the prosecution as the motive of the present crime.
2. On the 18th of September, 1971 one Natho, who is a cousin of the first informant and also the injured person in this case, came to the house of the first informant to stay as a guest. On the same day, whether by co-incidence or otherwise, all the four appellants came to the house of the first informant and again made a demand of the money spent upon the marriage of Shrimati Ajoo and, when this was refused, left threatening that they would "show us the right path". It is remarkable that Harichand himself does not transpire in any of these demands or negotiations. Natho spent the succeeding night in the house of the first informant and at about 1-00 a. m. On that, right which would be the night between the 18th and the 19th of September, 1971 the household was woken up on the sound of dogs. A lantern was burning and by the light of the lantern the four accused were seen entering the house and of them the appellants Paroo and Narain are said to have been armed with hatchets while the other two had lathis in their hands.
Paroo then gave a sharp sided hatchet blow to Natho which struck him on the left shoulder and by this time the first informant and his son Tikam raised cries on account of which others nearby also came up and of these in the first information report are mentioned Parho Jat, Chitro and Nago Kolhis. In point of fact, however, only Parho from amongst these is examined as a witness, the other eye-witnesses being the first informant himself, the injured Natho and Tikam and Ajoo the two children of the first informant. The first informant then went to the Matli Police Station and there a first information report was recorded at 11-00 a.m.
3. An investigation duly followed by there is no feature of this which needs specially to be mentioned. Except the appellant Narain each of the appellants produced a hatchet or a lathi but none of them were blood--stained and were not, therefore, secured by the police. In due course the appellants were tried acid convicted by the learned 11 Additional Sessions Judge, Hyderabad who sentenced them under sections 326 and 452 to rigorous imprisonment for 4 years and 2 years respectively and fines of Rs. 300 and 200 or in default further R. I. For 3 months and 2 months respectively.
4. Now, there was in this case, admittedly, against the appellants no evidence other than the oral evidence of the eye-witnesses. Indeed I should have been greatly surprised if there was any other evidence unless of course it was circumstantial evidence for these were the witnesses who were the natural witnesses, living as they were in the house of the first it formant and one hardly expect, strangers to be available at 1-00 a. m. In the night. The presence oft witness Natho was indeed something of a co-incidence and possibly mi~ have been doubted but for the fact that he is the only injured person to the case and that his injuries by themselves afford a sufficient guarantee of his presence. His presence in itself of course is not improbable; he is a cousin of the first informant and his coming there as a guest does not appear to be anything out of the ordinary. I would, therefore, normally have agreed with the learned Judge that these witnesses are witnesses upon whose evidence reliance can be placed and that they are witnesses substantially of truth.
5. I have, however, found some difficulty in accepting the evidence of these witnesses and the first is a danger, of which the learned Judge does not appear to have been conscious, of an exaggeration of numbers in this kind of case. Even when there is no previous hostility it is not unusual to find that alongwith the two culprits others, who are inimical to the prosecution witnesses, or who are no more than related to the real culprits, are added without any further justification than one of added vengeance, if that may be regarded as justification. That is why the Courts including their Lordships of the Supreme Court themselves, have often resorted to the test of considering whether the number of persons alleged to have been present is commensurate with the number of injuries caused. When it is not it at least behoves the Courts to enquire whether upon the entire evidence, including this circumstance, the case against each individual accused person is established. I am of course not suggesting that a conviction can never he recorded even though the number of persons alleged to have taken part are larger than those needed for inflicting the injuries. But it is certainly a matter which must be taken carefully into account. In the present case there were only two injuries on Natho, one of them being a hatchet injury upon the shoulder and the other a trivial abrasion on the chin measuring ----- x ----- x -----. The presence, therefore, of as many ay four culprits is certainly not established by the injuries themselves.
6. There is then the fact that there is a certain amount of delay which took place in the filing of the first information report. The incident took place at 1-00 a.m. And the report was lodged at 11-00 a. In.
Next day the distance of the police station being only six miles. It is true that this distance was covered on-foot and it is also true that the injured was carried on a cot but even to it seems to me that ten hours for a distance of six miles does appear to be somewhat greater than was warranted in the circumstances of the case. I am not, therefore, quite able to understand what the learned Judge meant when he says in his judgment that the first information report was lodged without any delay and the force of the circumstance that the names of all the accused persons appear in the firs information report is necessarily reduced by the delay which has not been explained.
7. The circumstance, however, which has caused me the greatest concern in accepting the evidence of these eye-witnesses is the evidence of alibi led by the accused Narain. He claims in his statement under section 342 that he was the munshi of one Habibullah Merton at his land in Jhudoo and that upon the 18th of September, 1971 he was engaged in weighing the cotton pods of two hurls and also in similar duties upon the 19th. Now clearly if this was true it was virtually impossible for him to have been present at the scene of offence on the night between the 18th and the 19th. Unfortunately no attempt has been made to show what the distance between Jhudoo and the seen, of offence is, but according to the map, it is over 40 miles and I think I can take judicial notice of this fact. Of course the statement of the appellant Paroo was to the same effect as Narain's own case also was that Paroo was one of the haris of Habibullah Memon. In support of this claim of alibi two witnesses were examined namely, Nek Mohammad and Haji. The first of these, Nek Mohammad, claims to be the kamdar --of Habibullah Memon and deposed to the facts which the appellant Narain alleged while the other-witness Haji also claimed to be a hari of Habibullah and supported the same case. It is not, therefore, a case where the alibi is merely spoken of orally by an accused person but there is substantive evidence to the effect upon the record. So far as the cross-examination of the witnesses concerned nothing, whatever, has been brought out to doubt their word the only reason which would otherwise have appealed to me for refusing to accept this evidence would be the question whether the dates are satisfactorily established for, to rely upon the memory of witnesses for such dates would clearly be difficult. Although even so I might mention that the witnesses do say that they were examined by the police upon the 21st September, 1971 and it is likely, therefore, that they might be calculating back the date from the date upon which they were examined by the police. The dates are, however, mentioned in a diary belonging to and produced by appellant Narain kept in his own handwriting for the year 1971. It has all the marks of an authentic diary and is throughout in the handwriting of one person but clearly not all written on one date. Besides, on the fly-leaf appears in English the name of the appellant and some others and on one or two other pages also he has scribed his own, name in English. There are in addition, some corrections which he has made in a table of daily wages which is printed in the diary and in the first few pages which are alphabetically marked do appear the addresses of persons whose initials begin with the relevant alphabetical letter. I am quite unable to see that there is anything wrong with this diary and in my view this conclusively established the alibi at least of Narain and probably that of Paroo also.
8. On this part of the case I regret I am quite unable to agree that the learned Judge seriously even examined the evidence, much less that I agree with his finding upon it. He observed:- "The defence of alibi taken by accused Paroo and Narain before this Court, is for the first time. This defence was not taken in the lower Court and they have said not a single word about this alibi in their B statements in the lower Court which was the first opportunity to say so, and therefore this defence can safely be ignored as afterthought. On the face of it, the two defence witnesses are set up witnesses and therefore their evidence does not help the defence. They have not even suggested this alibi when they were examined first in the lower Court."
9. The mere fact that the defence was not taken up in the committal Court is hardly good enough reason for rejecting the testimony although alongwith other circumstances it might have had that effect. In the sentence which I have underlined is not clear whether the learned Judge means that the alibi was not suggested when the witnesses were first examined in the lower Court or when the appellants were. In the context it would seem to mean the witnesses but there is nothing on the record whatever to suggest that the witnesses were even examined as witnesses in the committal Court. On the other hand it is to be remembered that they were examined by the police upon the 21st of September and it does not, therefore, seem to be entirely an afterthought on the part of the appellants that this evidence should be put forward.
10. A circumstance emanating from the prosecution evidence itself further confirms the alibi. These two appellants, namely, Narain and Paroo were, the Investigating Officer Aziz Ahmad deposes, arrested at Jhudo as is indeed borne out by the mashirnama which records their arrest. There at the otak of the same Habibullah Memon he claims that Narain and Paroo were produced before him by a witness named Kanju. This would appear to lend support to the case of the appellants that they in fact were working at Jhudo and further strengthens the evidence of the defence that at the relevant time they were there.
11. Now the evidence of alibi does not merely weaken the evidence of the prosecution against a particular accused person; it is external to that evidence and completely destroys it. If the evidence of alibi is believed then, although nothing appears inherently in the evidence of the witnesses who claimed that the accused person was present, that evidence is completely falsified and it becomes no longer a question of doubt whether the accused person was present or not but a matter of positive proof that he was not. It must inevitably follow, therefore, that this in turn recoils upon the general credibility of the witnesses whose evidence as to one individual accused person can no longer be found acceptable without some external guarantee. Admittedly in this case there is no corroboration against any of the appellants whose conviction rests solely upon the oral testimony of the five eye-witnesses. Although, therefore, I still believe that an attack took place in the house of the first informant in the course of which the witness Natho was injured I think it is quite impossible for me to uphold the conviction of any one of the appellants. I accordingly allow this appeal, and set aside the convictions and sentences imposed upon each of them. If they are in custody they shall be forthwith released unless held also under some other valid warrant.