Rowland, J.The appellant Mohammad Arif alias Supan Mian, aged about 20 years, has been convicted by the Sessions Judge of Gaya on a charge of murder of Sheonandan Singh and sentenced u/s 302, Penal Code, to transportation for life. The crime is said to have been committed on Monday 10th July 1939 at about 5 P.M. by stabbing Sheonandan in the abdomen with a broad bladed knife at Nawada on the bridge which crosses the river. Sheonandan pressing his hands to the wound walked without assistance to the end of the bridge where he was picked up by a rickshawwala Shital Lal and taken to the hospital. There he made a statement charging Supan, the son of Hafiz Abdul Qadir, with the crime. He received surgical treatment but died the same night.

2. The trial was held with the aid of four assessors of whom two who were Mahomedans thought the accused was not guilty and the other two who were Hindus thought that he was guilty. The Sessions Judge in a careful and considered judgment has examined the evidence of the prosecution witnesses who have deposed as to the events of that day and has found that most of them are unreliable and expresses doubt whether the alleged eye-witnesses were present at all.

3. He however has based the conviction of the accused in the main on the identification of Sheonandan himself along with the fact that on search of the house of the father of accused that night a knife was recovered which was on chemical examination found to be stained with blood, and partly also on the fact that whereas the accused had pleaded alibi saying that he was in Calcutta there is evidence which the Sessions Judge accepts to prove his presence in Nawada on the day in question. As to the dying declaration the Sessions Judge has observed that he would not wish to attach any exaggerated or sentimental value to it though he finds it difficult to envisage circumstance or motive so cogent as would induce a man mortally wounded to accuse a person other than his actual assailant.

4. I would go so far in agreement with the learned Judge as to accept that it is improbable that a man who has been stabbed and has been able to recognize his assailant would omit to name the actual assailant and instead give the name of some other person. But in cases where the assailant has not been recognized I think that we must not ignore the possible temptation that there may be, if one has grounds for suspecting any person, to name that person as having been actually and positively identified. The danger of this kind of wrong identification has, I think, to be borne in mind in dealing with what are called dying declarations. There is no absolute rule that a dying declaration should not be acted on for the purpose of convicting an accused person even if uncorroborated provided that the Court is fully satisfied that it is true. But, before so acting on it, the Court will apply to it every test of its genuineness and good faith which it is possible in the circumstances of the case to apply.

5. Before coming to a discussion of the dying statement itself I may first refer to some of the oral evidence. The Sessions Judge has doubted whether the alleged eyewitnesses were at all present. It is certainly clear that if they were present they have not correctly described their own movements. They do not corroborate the presence of each other. But if for the purpose of examination we take their evidence at its face value there is much in it to lead to the view that the assailant of Sheonandan may have been an unidentified person.

6. Jugal whose statement was the first to be recorded by the Sub-Inspector out of all the alleged eye-witnesses told the police that he had noticed a boy aged 18 or 20 wearing a kurta and green lungi and it appears from the statement he made to a Magistrate on 18th July 1939, that immediately after the incident he told passers-by that some Mahomedan boy had stabbed Sheonandan. He has said in the course of his evidence that he did not know the name of accused till he heard it later, though almost in the same breath he admits having known Supan for three or four years.

7. On the face of his evidence, therefore, it would seem that though he had known Supan for some time the person that he saw stabbing and running away was a per. son unknown to him. The next eye-witness Jamuna claims to have seen a boy running away and he says that Sheonandan pointed out the boy and said that that boy "has; stabbed me." What this witness said to the police was that he saw a boy running dressed in a kurta and green lungi whom he could not recognize. He did not give to the police either the name or the parentage of the accused and even at the trial he had to admit that he had seen him from behind only so that his opportunity for identification at the best would be poor.

8. The next witness Basdeo who at the trial identifies and names Supan as the assailant of Sheonandan had said to the police that Sheonandans assailant was a man aged nineteen, of short stature and fair complexion whom he would be able to identify if shown to him. That statement is inconsistent with the assailant having been a person who was known to Basdeo from before in which case one would have expected Basdeo to give the name or at least the parentage. But Basdeo in his evidence has admitted that he knew Supan from before.

9. The last of the so-called eye-witnesses is Raghunath Pande and he refers to a Mahomedan boy eighteen or nineteen years of age wearing a green lungi and a striped shirt. He says also that Sheonandan told him that Ashraf and Sabatul had held his hands and that a Mahomedan boy had stabbed him. If there is any truth at all in Raghunaths evidence this last statement would be very significant as indicating that of three persons referred to by Sheonandan the latter was able at the time to name two but did not name the third and that would very strongly support the inference that the third person was unidentified. This witness in the earlier proceedings and in the trial of Sabatul and Ashraf which took place in the absence of the present accused did not give Supans name but referred to him as a Moslem boy whom he claimed to be able to identify if he should see him. It was much to be desired that a test identification should have been held after the strictest possible precautions and indeed the father of this accused after the arrest in Calcutta of the latter petitioned the Sub-divisional Officer that arrangements might be made for the accused to be sent to the Central Jail, Gaya, after making special arrangements to see that prosecution witnesses should not have an opportunity of seeing him at Nawada Railway Station. But nothing was done about this. The witness as a matter of course when confronted with Supan as the sole accused in the dock had no difficulty in identifying him.

10. Then there is the evidence of the witnesses who claim to have seen this accused in Nawada on the day of occurrence whose evidence is relevant from two points of view: firstly, as a negative to the plea of alibi set up; and, secondly, as lending force to the prosecution contention that between the date of the crime and the time of his arrest in Calcutta the accused was absconding. There would be naturally not so much force in this contention if it were accepted that the accused had been in Calcutta all the time. The witnesses who saw accused before the occurrence are Dhanu Pasi and Gobind Thakur. Dhanu is a toddy-seller and his evidence is that at about 2 or 2.30 P.M. four or five young men came to his shop and demanded toddy. One of them was wearing a striped kurta and check lungi and he identifies the present accused as being that person. But in his statement to the police he said that there had been five persons of whom he named three and the inference follows that the other two were persons unknown to him.

11. But in cross-examination he admits that he had known Supan for four or five years and knew his name from before. Gobind Thakur is a witness who claims to have seen the accused sitting on the bank of the river at about 4-80, that is to say, shortly before the occurrence. There is a discrepancy in successive statements of this witness as to whether he saw the accused at 4-30 or 6 P.M. and the Sessions Judge was not disposed to attach any value to his evidence. Assuming that he did see someone who might be considered a suspicious character in the bed of the river the identification of that person may or may not have been correct.

12. Then there is the evidence of accuseds presence in Nawada after the occurrence and for this the prosecution relies on Kishun Pasi and on Babu Lachmiprasad, the Assistant Station Master of Nawada. The Assistant Station Master proves that a boy whom he described to the police had bought a ticket for Asansol by the passenger train leaving Nawada at 7.21 P.M. He has not, however, identified the accused and so far as this witness is concerned the criminal, if he was the person who bought the ticket, may have been some person other than the present accused.

13. The other witness Kishun Pasi has told a rather curious story that at about sunset Supan came and asked him for toddy and insisted on being supplied threatening Kishun with a knife and said he would kill him as he had killed Sheonandan Babu. He describes the accused as wearing a kurta and green lungi and has said at the trial that ho recognized him both by face and by voice. But when he was examined on 13th July 1939, before a Magistrate u/s 164, Criminal P.C., he said that he recognized Supan by voice only and that owing to darkness his face was not visible. This is no recognition on which any reliance can be placed.

14. A general comment may be made on all this evidence that there are signs of attempt to improve and develop it at successive stages. When one finds that tendency in the evidence generally special caution is needed also in dealing with a dying declaration. It has been admitted by the compounder of the hospital that a large number of Hindus assembled on hearing of the incident and crowed into the room in which Sheonandan was and talked to him; and it has been argued for the defence that the inference ought to be drawn that Sheonandan not having recognized his assailant was influenced by suspicions put into his mind by others in such conversation.

15. In this connexion it is pointed out that on the way to the hospital Sheonandan did not disclose the name of his assailant either to the rickshawwala Shital or to an acquaintance Suganchand Jain whom he met on the way. The prosecution argues on the other hand that as Sheonandan had suffered a severe injury he must be supposed to have been anxious in the first instance for his own treatment with a view to saving his life and that therefore he was not going to stop on the wayside to indulge in conversation about the details of what had happened to him. The evidence is that Suganchand asked Sheonandan what had happened and he said a Mahomedan had stabbed him that Suganchand asked him kis ne mara (who stabbed) and he said his condition was not good and asked Suganchand to come to hospital which the latter did. The rickshawwala Shital Lal says that he himself did not ask anything from Sheonandan nor did Sheonandan tell him anything. The compounder says that immediately on arrival he asked Sheonandan what had happened and was told that a Mahomedan boy stabbed him with a chhura. The expression may imply that the Mahomedan boy who had stabbed him was unidentified though such an inference does not inevitably follow. Then, according to the compounder, after some conversation with outsiders Sheonandan asked that his statement might be recorded. There is serious room for doubt as to whether the contents of the dying statement include matter suggested to the deceased by the outsiders and this is a circumstance which cannot be ignored in estimating the value to be attached to it.

16. Furthermore, the dying declaration itself in several particulars is unconvincing especially as to the parts attributed to Ashraf and Sabatul. In fact two successive statements were made by Sheonandan in the one of which he said that those two persons caught him one by each hand and in the other he said that Ashraf caught his left hand and Sabatul caught his right hand and waist. I cannot feel that in this case the dying declaration is one on which full and implicit reliance can safely be placed.

17. As regards the motive the Sessions Judge has observed that the motive of the outrage remains obscure. The prosecution have attributed it to communal feeling between Hindus and Mahomedans and reference has been made to two previous incidents. One arose out of the burial of a Mahomedan woman and the other out of some alleged defilement of idols of Siva and Parbati. Sheonandan no doubt was a person of some influence among the Hindus but the evidence is that in both these incidents he exerted his influence in favour of a compromise between the two communities and in both cases a compromise was effected. To what extent then are the dying declarations corroborated The evidence as to the presence of Supan in Nawada that day seems to me to be little better than the direct evidence of the eye-witnesses and impossible to trust in the matter of Supans presence. Then there is the finding of the knife and it may be noticed that although there were stains of blood on it it could not be proved that the blood was human and it has not been proved that the accused was at or about the time of occurrence residing in the house in which the knife was found.

18. In the circumstances I do not feel able to support the conclusion at which the learned Sessions Judge has arrived or to regard the dying declaration as being sufficiently convincing in itself or sufficiently corroborated to form the basis of the conviction of this appellant.

19. I would allow the appeal and set aside the conviction, acquit the accused and direct his release.

Shearer J.

I agree.