JUDGMENT
1. This an appeal by the Local Government against the acquittal of one Dip Narain, who was convicted by a Magistrate of the first Clans of an off euro punishable under Sections 211-109 of the Indian Penal Code, but acquitted by the learned Sessions Judge of Azamgarh on appeal. As a matter of fact nine persons were put on their trial before the Magistrate, all of whom were convicted and all of whom, appealed. The Sessions Judge dismissed seven of the appeals, but acquitted Dip Narain and one Musammat Talia. There has been no appeal against the acquittal of the latter.
2. The task before us is a simpler one than was before the Courts below, as many matters which were in controversy there have been accepted in argument in thin Court as fully established by the evidence. We find that Gaya Sunar, resident of Shahzadpur in the Fyzabad District, was on bad terms with his relatives, Sarju and Lachhman. He somehow or other came to believe that a false charge brought against these persons could be successfully prosecuted, if suitable measures were taken, before a certain Bench of Honorary Magistrates exercising jurisdiction at Azamgarh. He came into Azamgarh for that purpose, and there got into communication with various persons, including Gulab Sunar and one Muhammad Tshac], a dealer in timber. A conspiracy was hatched for the filing of a false complaint before a Bench of Honorary Magistrates consisting of Raja Muhammad Shah and Babu Krishen Deo Narain Singh, Salaran Teli of Azamgarh was employed to come forward as complainant, and it seems to us perfectly cleat' on the evidence, if indeed this much also has not been practically conceded in argument before us that there were members of the conspiracy who professed to be able to ensure its success by bringing improper influence to bear on Babu Krishen Deo Narain Singh. Accordingly, on April 3rd 1914, Salaran filed a complaint before the Honorary Magistrates already named, in which he falsely charged Sarju and Lachhman with having committed, within the jurisdiction of the said Magistrates, offences punishable under Sections 323, 406 and 417 of the Indian Venal Code. Salaran was examined on his complaint and put in a list of witnesses. We cannot refrain from remarking that a Magistrate of experience could scarcely have helped seeing that the story told by Salaran was a most extraordinary one, and that, even if it might prove on inquiry that there was any truth in the other allegations made by him, the story of the assault said to have been committed by Sarju and Lachhman on April 1st bore every appearance of being a piece of imaginative embroidery. The Honorary Magistrates, however, took cognizance of the complaint as one of "causing hurt" (under Section 323, Indian Penal Code) only, and issued process for the attendance of the accused persons and of the witnesses named by Salaran, fixing April 17th, 1914, for the trial. On that date Sarju and Lachhtnan, having come to Azamgarh and secured the services of Sheikh Faiyaz Husain, a local Mukhtar, presented a petition before the Sub-Divisional Magistrate asking for a transfer of the case against them to some other Court. There were allegations made in this petition which satisfied the Sub-Divisional Magistrate that prompt action was called for on his part. He transferred the complaint of Salaran to his own file, and went over in person to the Court of the Honorary Magistrates to take possession of the record and secure the attendance before himself of the complainant and his witnesses. Tho falsity of the complaint was at once disclosed. Salaran absconded; his witnesses denied all knowledge of the affair. The complaint was dismissed, and the Sub-Divisional Magistrate initiated a proceeding under Section 476 of the Code of Criminal Procedure which resulted in the trial out of which the present appeal has arisen.
3. As against Dip Narain, the case for the prosecution is that he was an active member of the conspiracy which organised the institution by Salaran of his false complaint of April 3rd, 1914, and more particularly that he was the member to whom the others looked as the instrument through which improper influence was to be brought to boar on the Honorary Magistrate, Babu Krishen Deo Narain Singh.
4. In this connection we may fit once proceed to comment on one aspect of the case which calls for special notice. The learned Sessions Judge seems to have been much influenced by the view that the case for the prosecution involved serious allegations against this Honorary Magistrate. He considered those allegations grossly improbable and very inadequately supported by the evidence. He then followed out a train of reasoning according to which the acquittal of Dip Narain appears to follow as a necessary consequence on the failing of the prosecution to establish any specific charge of corruption or misconduct against Babu Krishen Deo Narain Singh. We are quite unable to look at the case in this light. The Honorary Magistrate was not on his trial. No charge was preferred against him, and no onus lay on the prosecution of establishing any such charge. The question with which we are concerned is whether Dip Narain represented himself, or was understood by the other conspirators, to be a person in a position to bring corrupt influences to bear on the Honorary Magistrate. Whatever remarks we may find it necessary to make on any portions of the evidence, we have to bear in mind that the point for determination is the guilt or innocence of Dip Narain, and that his guilt is perfectly consistent with the entire innocence of the Honorary Magistrate.
5. When we come to ask ourselves whether there is anything seriously improbable in the suggestion for the prosecution that Gaya Sunar and his fellow-conspirators believed themselves able to influence the conduct of Babu Krishen Deo Narain Singh through Dip Narain, we find that there is reliable evidence on the record which lends plausibility to the suggestion. Dip Narain seems to be a local shopkeeper. He speaks-of himself as a "tenant" of Babu Krishen Deo Narain Singh; but it does not appear that he has any ostensible connection with that gentleman, or any ostensible business of any kind, which should make him a constant attendant in the Court of the Honorary Magistrates on days on which Babu Krishen Deo Narain Singh is sitting. Yet Abdul Ghafur, peshkar of the Honorary Magistrates' Court, deposes as follows: "Dip Narain comes daily when Babu Kishen Deo Narain sits. I have often been to Babu Kishen Deo Narain's house and I have seen Dip Narain there. Dip Narain used to give pan to Bahu Kishen Deo Narain and Raja Mohammad Shah." This witness seems to us quite unshaken in cross-examination. The general tone of his evidence is by no means that of a man who has been got at to bolster up a charge against Dip Narain and to blacken the character of Babu Krishen Deo Narain Singh. He deposes that Dip Narain was present in Court on April 3rd when Salaran was examined on his complaint, but admits that he does not remember Dip Narain's presence on April 17th, though the latter is an admitted fact. He represents Dip Narain as ministering to the needs of both the Honorary Magistrates on the Bench when Babu Krishen Deo Narain Singh sits there. We accept his evidence as true, and we regard it as proving that Dip Narain habitually conducted himself in a manner calculated to impress outsiders with a belief in the existence of confidential relations between himself and Babu Krishen Deo Narain Singh, particularly with reference to the proceedings of the latter on the Bench of Justice.
6. At first sight the above conclusion may not seem to carry us very far; but there is no getting away from the fact that in arriving at it we have virtually disposed of this appeal. For when once the case for the prosecution has been cleared of that mist of presumed improbability through which it presented itself to the eyes of the learned Sessions Judge, the evidence against Dip Narain is simply overwhelming. Setting aside for the moment all items of evidence as to which there has been serious controversy, we find on the record the statements of four witnesses, Girdhari, Amjad Ali, Neor and Chhittru, all of whom depose to having seen meetings of the persons accused of this conspiracy at the house of the accused, Gulab Sunar, and three of whom depose to the presence of Dip Narain at these meetings. These witnesses were believed in the Courts below, and have been relied on by the learned Sessions Judge as against all the accused persons other than Dip Narain and Musammat Talia. Their evidence seems to us to have been procured under circumstances which practically exclude the defence theory of collusion and fabrication. In our Court only the evidence of Chhittru was seriously attacked, and this attack was based on a previous statement of his (one made in the course of the proceedings under Section 470 of the Code of Criminal Procedure) on which he had never been cross-examined, Tim accused persons were very efficiently defended in the Courts below, and if there had been any real force in the argument now pressed on our notice, we are confident that the alleged discrepancy would have been put to the witness Chhittru when he was recalled for cross-examination. The argument itself is based on an ambiguous phrase in Chhittru's former deposition. We do not find it convincing, and we regard the evidence given by these four witnesses as reliable. It has been argued that it is not conclusive; but it is evidence of facts which, in the absence of reasonable explanation, do connect Dip Narain with the presentation of Salaran's false complaint. It requires to he read in connection with the evidence of the peshkar, Abdul Ghafur. The association of Dip Narain with the other conspirators at the house of Gulab, under the circumstances stated, is a matter from which the Court may reasonably infer his complicity in the conspiracy. Moreover the evidence of Amjad All carries the case even beyond the bounds of legitimate inference, for he deposes to a statement by Gulab that he was "getting up a case" and to a request for assistance from this witness.
7. Then there is the evidence of Fida Husain, the clerk of Mohammad Shafi, Mukhtar, who was engaged to act for Salaran in the prosecution of the false charge. He deposes to the active participation of Dip Narain in getting the false complaint drafted and in the arrangements made for its presentation in Court. He is corroborated by Mohammad Shaft himself, who even deposes that it was from Dip Naram's hand that he received a preliminary fee of one rupee. The Magistrate who tried the case looked upon Fida Husain as probably an accomplice, and was dissatisfied with the manner in which Mohammad Shafi fenced with certain questions put to him in cross-examination. More particularly, he thought the Mukhtar was not speaking the truth when he said that Fid a Husain, though he had been his clerk, had ceased to act as such before the transactions in question in this case. The learned Sessions Judge seems to have worked up to the conclusion that all the evidence given by these two witnesses was deliberately false. Yet it is an undoubted fact that Mohammad Shah was engaged to act for Salaran in the prosecution of Salaran's false complaint, and Fid a Husain did write out the complaint filed by Salaran in Court and the power-of-attorney in favour of Mohammad Shafi. They were necessary witnesses to any inquiry into the circumstances under which Salaran's complaint came to be filed. The suggestion that they have embroidered on the facts which undoubtedly were within their knowledge, for the sake of getting Dip Narain into trouble, rests on the very slenderest of foundations. It was no doubt a very awkward thing for Mohammad Shah", from the point of view of his professional career, to be suddenly caught out in the position of ostensible legal adviser to a gang of conspirators engaged in the manufacture of a flagrantly false case. The position would tend to make him somewhat economical of the truth while in the witness-box, and he may have influenced Fida Husain to be the same. To this extent the evidence of the two witnesses requires to be cautiously considered; but we find no real reason for disbelieving their evidence where it affects Dip Narain. That they are not the tools of any conspiracy for getting Babu Krishen Deo Narain Singh into trouble may reasonably be inferred from the fact that they say nothing whatever against him.
8. This is the position we have reached without oven touching upon the two most controverted points in the case, the evidence of the witness Chedi Rangrez and the confession of the accused Muhammad Ishaq. If we could be sure that these two men spoke the truth to the best of their knowledge, we need not have discussed any other evidence. Both assert that the filing of Salaran's complaint was the outcome of an elaborate conspiracy, in connection with which Dip Narain was an important member, acting (or purporting to act) as go between for the others in their dealings with Babu Krishen, Deo Narain Singh. The confession of Mohammad Ishaq obviously requires to be taken into consideration against all the accused, the learned Sessions Judge need have had no misgivings on this point. Muhammad Ishaq was not convicted on his plea of guilty, and he was tried jointly with the other accused. Under the circumstances of this case the trying Magistrate would have shown very poor discretion if he had convicted Muhammad Ishaq on his plea of guilty, thereby recording his belief in the substantial truth of Muhammad Lshaq's confession, before the other accused had even entered on their defence. The case obviously required the most thorough sifting out before any Court could say with confidence that Muhammad Ishaq's confession was substantially true, even where it implicated himself. As it is, the learned Sessions Judge has taken into consideration the confession of Muhammad Ishaq to a far greater extent than did the trying Magistrate; only he has used it to discredit the witness Chedi and to throw doubt on the prosecution case generally, as if the prosecution could be made responsible for all the allegations which Muhammad Ishiiq saw fit to make against the Honorary Magistrate.
9. We have no doubt that both the Courts below were right in thinking that both Mohammad Jshaq and Chedi had made (statements which were palpably untrue. We should not think of convicting anyone except possibly Mohammad Ishaq himself on the confession plus the evidence of Chedi. Yet we think the learned Sessions Judge was quite mistaken in looking upon Chedi as a witness wholly unacquainted with the facts to which he purported to depose. He was probably telling about as much of the truth as he felt he could conveniently do without making it too obvious that his proper place was in the dock and not in the witness-box. Having said this much, we think it idle to entei upon conjectures as to why Mohammad Ishaq and Chedi should have said precisely what they did. On no reasonable theory do we find anything in these statement which shakes our belief in the rest of the prosecution evidence; there is a complete case against Dip Narain without them.
10. The defence, as embodied in Dip Narain's own statement, we find to be singularly unconvincing. It rests upon the fact that Faiyaz Husain, Mukhtar, acted for Sarju and Lachhman in the proceedings before the Sub-Divisional Magistrate. Faiyaz Husain had been the opponent, of Babu Krishen Deo Narain Singh in a Municipal election in which the latter was successful. The suggestion is that, in order in revenge himself for his disappointment, this Mukhtar has engineered all that part of the prosecution case which seems to cast discredit on the proceedings of the Honorary Magistrate. Dip Narain is supposed to have been implicated, firstly, in order to strike at Uabu Krishen Deo Narain Singh through him; secondly, because' he refused to vote for Faiyaz Husain at the contested election; and thirdly, because he refused to make a statement implicating Babu Krishen Deo Narain Singh at the inquiry before the Sub-Divisional Magistrate. This last is the point on which Dip Narain himself lays most stress, and in doing so he throws mud freely, not only at the Mukhtar Faiyaz Husain, but at the Sub-Divisional Magistrate himself. His allegations against this officer are wholly unsupported by evidence and we regard them as obviously false. His defence evidence is directed towards proving that he had some ostensible business on April 17th in the Municipal Office which adjoins the Court of the Honorary Magistrates, and towards substantiating his story about the contested Municipal election. One witness also says that Mohammad Shafi owed Dip Narain money, a fact which Mohammad Shan himself had in a fashion admitted, it is obvious enough that Mohammad Shafi would not obtain a release from his debt by getting Dip Narain sent to jail; and the whole of the defence evidence might he accepied, though some of it seems of very doubtful value, without really affecting our view of the case for the prosecution.
11. We are satisfied that the learned Sessions Judge has allowed himself to be wholly led astray in this case by a sort of belief that the prosecution was really directed against Babu Krishen Deo Narain Singh, and that Dip Narain could not be convicted unless the Court believed the allegations against that gentleman which are to be found in Mohammad Ishaq's confession, and nowhere else on the record. We hold it to be fully proved that Dip Narain was a party to the conspiracy which resulted in the filing of Salaran's false complaint. We set aside the Sessions Judge's order of acquittal; we restore the Magistrate's order convicting Dip Narain on the charge under Sections 211-109 of the Indian Penal Code as framed. No special argument has boon addressed to us on the subject of sentence, and we see no adequate reason for departing from the sentence originally passed by the trying Magistrate. We sentence Dip Narain to be rigorously imprisoned for one year and to pay a fine of Rs. 60, in default of payment of tine he will undergo further rigorous imprisonment for two months. He must surrender to his bail accordingly. Any period of: imprisonment which he may have already undergone will count towards execution of the sentence now imposed.