JUDGMENT 1. Ram Pratap, a Brahman, aged 40 years, has been sentenced to death u/s 302 of the Indian Penal Code by the Sessions Judge of Sultanpur. He has appealed and the reference for confirmation of the sentence is also before us. 2. The charge of which Ram Pratap was found guilty was that on the 24th April, 1944, in a village called Aphuia, where he lived, he intentionally murdered a man named Ram Harakh Shukla of village Rauza, about a mile from Aphuia. 3. The prosecution case was that there had been enmity between the two men for some years; that shortly before the occurrence under consideration this had developed into an open quarrel about the right of Harakh Shukla to collect mahua flowers from certain trees; and that about noon on the 24th April the Appellant treacherously attacked Ram Harakh as he was returning home from Aphuia (where the mahua trees were), accompanied by his servant Sampat who had been collecting mahua flowers or having them collected from him. 4. We have referred to Sampat as the only eye-witness who gave evidence. In the Magistrate's Court there was another witness named Raghubar, who may or may not have witnessed the occurrence. He was not produced in the Sessions Court as he was alleged to have turned hostile. With regard to him all that we know is that, according to Sampat's evidence, while he, Sampat, was running away, he heard Raghubar's voice remonstrating. He did not stop to see Raghubar's face. When Sampat returned with the two men, Sobhan and Jagmohan, from the threshing floor they saw Raghubar on the spot, and Raghubar apparently accompanied them to Ram Harakh's house. Sampat says that Raghubar went with him to fetch people. Raghubar was an old servant of Ram Harakh; he lived in a village 20 miles or more away, but he had come 15 days before to assist in collecting mahua. 5. It has been asked why other witnesses were not produced, in particular Raghubar, and reference has been made to certain cases, namely Sarfaraz Ali v. King-Emperor 1941 O.A. 782 : A.W.R. (C.C.) 303 : O.W.N. 1034 and Ram Ranjan Roy v. Emperor (1915) 42 Cal. 422. For the Crown we were referred to the Privy Council case of Stephen Seneviratne v. The King AIR 1936 P.C. 289 . 422. For the Crown we were referred to the Privy Council case of Stephen Seneviratne v. The King AIR 1936 P.C. 289 . In the first case a Bench of this Court is represented in the head-note as holding that the Public Prosecutor should produce all the witnesses named in the list submitted by the committing Magistrate and should not refuse to produce a witness on the ground that he was declared hostile by the Magistrate; and that the Court should exercise its powers u/s 540 of the Code of Criminal Procedure to examine any such witness withheld. On examining the judgment we do not think it was intended to lay down in such wide general terms the procedure which should invariably be adopted in such cases. The Bench referred to certain observations made in the Calcutta case on the duty of the Public Prosecutor to place before the Court all the available eye-witnesses and to the observation in the Privy Council case that "witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution." 6. But the learned Judges of this Court who decided the first case concluded with the remark. "A good deal, no doubt will depend on the circumstance of each case". 7. We would also stress the observations made by their Lordships in the Privy Council case with reference to the principle laid down in the Calcutta case that all available eye-witnesses should be called by the prosecution, even though their names were on the list of defence witnesses. They said: "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. They said: "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions, but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence, lf it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination." 8. Now in the present case the position, as we understand it, is this. Raghubar was produced in the Magistrate's Court presumably because it was thought that he was eye witness or had arrived on the spot soon enough to give material evidence implicating the Appellant. But in the witness box he denied that he was an eye witness. He said that he was in another village at the time and heard of the murder several days later. He was thereupon treated as hostile. If he was not prepared to give any evidence relating to the occurrence the cases which have been cited do not in our opinion support the contention that he should have been called. If history was that be was not an eye-witness in any sense of the term he had no alternative version to put forward and even on the Calcutta view it was not incumbent on the prosecution to produce him. 9. As regards other possible witnesses it is clear that the youths who were called by Sampat to assist him in collecting mahua could give no material testimony, if they had left the place before the occurrence. The prosecution might have called Jagmohan or Subhan or some other person who came to the scene to prove that as soon as they saw Sampat he told them the same story that he told in Court. The prosecution might have called Jagmohan or Subhan or some other person who came to the scene to prove that as soon as they saw Sampat he told them the same story that he told in Court. But it must be remembered that the prosecution at first thought, (so we infer) that Raghubar would support Sampat's story and they may well have supposed that his evidence and that of Jangli (supported as that of the latter is by other evidence, including the first report) would be sufficient. 10. The learned Sessions Judge has also discussed at length some other arguments which were placed before him, but we need not examine these as they were not pressed before us. We may say, however, that we are in general agreement with his conclusions. 11. We come now to the admission of the Appellant in the Musafirkhana hospital the same evening. According to his story he had gone there in the morning from a place called Pindara (which is not far from Musafirkhana), where he was staying with his brother's wife. He produced no evidence to show that he bad been at Pindara. 12. It is proved by the Medical Officer, Dr. Gupta and not disputed that when the Appellant came to the hospital he was accompanied by a Vaid named Bharath. Dr. Gupta had some previous acquaintance with Bharath and he says that Bharath told him that the Appellant was his relation this presumably to explain why he had brought the Appellant. The Appellant had some diarrhoea trouble. Dr. Gupta added that he might not have admitted the Appellant without Bharath's recommendation. As it was he had no suspicion until the Appellant's brother Bindeshri came several days later and asked him "to change the time of admission from 6 p.m. to sometime in the morning as he was being implicated by the police in a murder case." 13. Dr. Gupta explained that he did not report this to the police at the time because the request was made "in much guarded tone." 14. The bed head ticket (Ex. 18) was produced. Dr. Gupta admitted that the symptoms shown there might be the result of a cholera attack, but he also said that they might have been produced by taking a strong purgative. The bed head ticket (Ex. 18) was produced. Dr. Gupta admitted that the symptoms shown there might be the result of a cholera attack, but he also said that they might have been produced by taking a strong purgative. Counsel referred lo the first entry under the head condition on admission," It has not been correctly printed and should read "Cases of vomiting and loose watery motions" But we find from the original that "C/O has been expanded in printing into "Cases of" and we think it may very well have been intended to stand for "complains of". There is no evidence that any vomiting occurred after the Appellant's admission. 15. The Appellant had 6 or 7 motions on the day of admission and four the next day. After that his condition improved and it appears to have been nearly normal after another day or two. 16. The absence of Bharath as a defence witness is, we think we are entitled to say, significant, he being such a material witness in connection with this episode. As we have remarked the learned defence Counsel conceded that the episode looks very suspicions. He hardly attempted to maintain that the Appellant got himself admitted to hospital because be really thought that he had a serious complaint which required treatment there What the four assessors thought about it is quite clear from their unanimous opinion that the Appellant was guilty. When a unanimous opinion to this effect is given by assessors in a murder trial we think we are entitled to lay some stress upon it. 17. We have carefully considered all aspects of the case and our conclusion is that there can be no reasonable doubt about the Appellant's guilt. We dismiss his appeal, maintain his conviction and sentence and, accepting the reference, direct that the sentence of death be carried out according to law.