A.R. Navkar, J.
1. This is an appeal against an order of conviction, recorded by the Third Additional Sessions Judge, Gwalior, conviciin0 appellant No. 5 Under Section 330 of the IPC and sentencing him to four years' rigorous imprisonment and fine of Rs. 2,000/- and in default, to further undergo one year's rigorous imprisonment and also Under Section 203 IPC to one year's rigorous imprisonment. Both the sentences are ordered to run concurrently. Appellants Nos. 1 to 4 are convicted Under Section 330 IPC and sentenced to six months' rigorous imprisonment, through judgment dated 8-11-1979 in Sessions Trial No. 184 of 1978.
2. The facts giving rise to this appeal are that the appellants were tried Under Sections 304 and 330 of the I- P- C. on the allegation that on 9-7-1975, while appellant No. 5 was posted as Sub-Inspector at Police Station. Morar and appellant No. 4 as Head Constable, the remaining appellants were posted as Police Constables. They caused iniuries to the deceased Paris John with a view to extract confession from him, in relation to a theft committed at the house of Prahlad Narain in Shastri Nagar, Morar, in Quarter No. 85. Appellant No. 5 was also tried under S- 203 IPC for having made false entries in police record. According to the prosecution, in Shastri Nagar, two thefts were committed in the night of 8-7-1975, one at the house of Prahlad Narain (P.W. 5) and the other at the house of Chunni Lai, who is not examined. It js alleged that Chunnilal's son Basant Lai was injured in that incident. He is also not examined. Initially, the case of prosecution, as recorded in the document and as mentioned in Ex. D/l'3, an application sent by the aunt of the deceased to the Collector, was that deceased was caught in the neighbouring area bv public. Thereafter, it is alleged that information was sent to Police station, Morar, whereupon, appellant No. 5 and other accused persons came to Sha-tri Nagar and took Paris John in custody. Thereafter, he wag sent to the Police Station and on a search of his body, Article A-Cable (thick iron wire tied around his waist), Article B-scissors, especially designed for cutting lock?, Article A-a pant and Article D-a pair of shoes, were seized from him in presence cf Ramhet Sharma (P.W. 1) through seizure Memo (Ex. P/l). Statement of Ramhet Sharma was recorded as p. W, 1. Prosecution also examined Chandir alias Narendra Singh who was in custody of the appellants along with Paris John and Narendra Singh, it is alleged that he enquired as to why Paris John was arrested by the Police. On 10-7-1975, a magisterial enquiry Under Section 176, Cr. P. C. was held by Shri Dixit, Additional District Magistrate, who is examined as P- W. 29. In enquiry, Shri Dixit examined certain witnesses, who claimed that they have seen the incident and also seen Paris John. It is further submitted that Mrs. Rebecca John, mother of Paris John, lodged a complaint before the District Magistrate and it is exhibited as Ex. D/10. The Prosecution has examined in support of the story Surai Singh Yadav (P.W. 19), Mangilal (P.W. 8), Nihal Singh (P.W. 9), Narsingh (P.W. 10), Radheshyam (P.W. 11). Mohan Singh (P.W. 12), Jagdish Prasad' (P.W. 13), Basant Rao Mandre (P.W. 16), Shyam (P.W. 20) and Data Ram (P.W. 21).
3. The prosecution story, in short, is that on 9-7-1975, the then Police Sub-Inspector accused Tulsiram Hindoliya and Bhagguram, constable were stationed at Thana, Morar, and to investigate crime No. 207/75 Under Section 458. IPC read with Section 380 IPC showed their departure from the Police Station. Along with them, Head Constable Makarand Singh, Constables Prem Singh, Munshi Singh, went to Shastri Nagar for investigating the abovementioned crime. At Shastri Nagar, Tulsiram Hindoliya arrested Paris John alias Ranu in connection with the said offence and Save him beating with cane and lathi with a view that he may give the place where he has hidden the stolen articles. This, he did in the presence of the persons slaying at Shastri Nagar. When the condition of Paris John became serious and his pant was spoilt because of urine and stoojs, he was taken in a tempo to the Police Station, Morar. There were many injuries on the body of Paris John. The accused made no arrangement for the treatment of Paris John and on the contrary, they kept him in custody. While he was in the custody of the above Police Officer and the constables, he became unconscious. Accused Tulsiram Hindoliya did not enter the fact of arrest of Paris John in the Police record and suppressed the real facts dishonestly.
4. When the information that condition of Paris John is settOUs was received by in-charge Keshay Singh, then the in charge Keshav Singh of the Thana with Tulsiram Hindoliya and other Police Officials, took Paris John to the Government Hospital. But, by the time Paris John could be taken to the hospital, he was already dead. Dr. D. C. Jain, after seeing Paris John, declared him dead. On 10-7-1975, the Additional District Magistrate Dixit prepared Pan-chanama Lhash of Paris John and it is Ex. P./39. On the dead body of Paris John, Dr. D. C. Jain, found a number of injuries.
5. Sub-Inspector Keshav Singh Tomar (P.W. 26) entered crime No. as 200/75 Under Section 302 IPC and on the basis of the first information report lodged with him, which is Ex. P/37, he went to Shastri Nagar and prepared the spot map and also investigated the matter. C. S.P. Vijay Singh ordered that the enquiry of the incident should be made by the Additional District Magistrate and Keshav Singh should not enquire in the matter. Because of this order. Keshay Singh Tomar stopped the investigation. After this, C. I. D., Bhopal started the investigation and C. I. T. B. S. Chouhan (P.W. 29) made enquiry up to 18-8-1977. But, many persons living in the Shastri Nagar declined to give their statement before him and they said that if the enquiry is made bv anv superior officer, then they are willing to give their statements. When these persons met the D. L G., C. I. D-, S. B. Shri S- B. Roman, D. S. P., C. I. D. Bhopal (P.W. 32) started the enquiry. The enquiry was started by him when he received an order dated 18-8-1977 under the orders of the D. I. G., C. I. D. During the investigation, he recorded the statements of the witnesses and took the counterfoils of Rojnamcha kept in the Police Station, Morar. Through Naib Tahsildar Shri S. G. Nim-balkar, an identification parade was held and Makarand Singh, Prem Singh, Munshi Singh and Bhagguram were put in for identification. After completing the investigation, challan was filed before the Chief Judicial Magistrate, Gwalior. The complaint was taken up by Shri p. C. Agarwai, and he framed against all the accused persons charges Under Sections 304, 331, 342, 218, 201 and 203, IPC and after taking into consideration the statements given by the eye-witnesses and other documents, committed the accused to the Sessions Court to stand their trial.
6. All the accused have denied guilt. The defence of accused Tulsiram Hin doliya is that when he received a telephonic message that some incident of theft has taken place in Shastri Nagai, he went to the spot along with Police force. When he reached there, the residents of Shastri Nagar had a thief in their custody and they were beating him and on the body of the thief, there were grievous injuries. The person, the people were beating was Paris John, and the Police force saved him from serious beating which the residents of the Shastri Nagar wanted to give him and after protecting him from the wrath of the crowd, they took Paris John to the Police Station. He gave the articles seized from Pari5 John to Head Constable Ram Prakash Singh and also gave instructions to Ram Prakash Singh to send Paris John to the Hospital. Then Keshav Singh Tomar came in the Police Station and he recorded the details of the incident. After recording all the details by Keshav Singh Tomar, the accused came back to the Police Station. At that time. Head Constable called Keshav Singh and informed him that Paris John is complaining of pain in his chest and also he is not feeling well. At that, the accused along with Keshav Singh Tomar, took Paris John in his jeep to the hospital. But, while he was being carried to the hospital, he had a hiccup and when they reached the hospital Dr. Jain, M. O., saw Paris John and informed the party that he is dead. Further, he has said in his defence that when Paris John was at Shastri Nagar, the crowd which was assembled there, gave beating to Paris John by means of lathis and he saved Paris John and at that time, Asha-ram, Dhadaiya, Kbacheraram and Babu were present. He, on the contrary tried to save Paris John and never gave the beating to him as alleged by the prosecution. In defence, he has submitted the statements which were recorded bv the Additional District Magistrate Dixit and also the order passed by him. The defence of the rest of the accused is that they accompanied Tulsiram Hindoliya to investigate the crime Under Section 379, IPC and went to Shastri Nagar. When they reached Shastri Nagar, they saw a crowd giving beating to Paris John and after protecting him from the crowd, they brought him to the Police Station. When they tried to save him, Asharam, Babulal and others were present.
7. On the basis of the evidence, the learned trial Court convicted the appel- lants as mentioned above, but the tris Court has acquitted- the accused persons of offence Under Section 304, IPC. Against the said judgment of conviction and sentence, the present appeal is filed.
8. The learned trial Court framed (seven points for decision. After considering the evidence, the trial court found all the points against the accused.
9. Before deciding this appeal, I will consider, briefly, the evidence produced in the case. Ramhet Sharma (P.W. 1) has said in para 5 of his statement that ha knows Paris John for last 5 to 6 years and he was a vagabond and a habitual thief. When certain articles were seized from Paris John,'there was a crowd standing out and he enquired from Paris John as to how he has suffered the injuries on his body. To this query, Paris John told him that at Shastri Nagar, he was given beating badly, because the residents of Shastri Nagar thought that he has committed theft in the locality. He was cross-examined with para 7 of his statement given to the Police and was asked whether in the Police statement he has mentioned that when he saw Paris John, he was in a good condition. He has said in his statement he did not give that statement. From the statement of this witness., the defence taken by the accused becomes probable. Whether the defence should be believed or not, I will consider after taking into consideration the whole evidence.
10. The second witness is Smt Roslin John (P.W. 2) the mother of Paris John. Much stress was led by the learned Counsel for the State on the statement by mother of Paris John. In para 5 of her statement, she has stated that one Anil Gupta told her that the police has arrested Paris John and that he is given a bad beating. Hearing this, she along with Rebeca Jecob, went to the Morar Police Station. When both of them enquired regarding Paris Joseph, the Police told them that no one by name of Paris John is in their custody. Hearing thaf, both of them came back. Again they went to the Control Room and while they were sitting in the Control Room up to 1.00 p.m., no information was given to them regarding the whereabouts of Paris John. On the contrary, they were informed that Paris John will be coming there very shortly. At about 100 p. m, C. S. P. Raghuvanshi told them that Paris John is now no more, fn para 12. she has further stated that when she saw the dead body, there were injuries on the body of Paris John and the pant worn by him was in a torn condition and it was soiled by the excreta. Afterwards, continuously for seven days, all the 24 hours, the police guarded ther residential house and did not allow them to see anyone. She was confronted with omission in the statement she gave to the Police to the effect that Police has given beating to Paris John and how it is that in the police statement she could not say that, she could not say. Further, she also had to admit the omission in her statement to the Police to the effect that when she saw the dead body of her son, there were injuries on his body and why this portion of the statement ?s missing, she is not in a position to say. I may mention here that these twoomis-siong make it very difficult for me to hold that the statement given by this witness is nothing but sterling truth.
11. Petric John (P.W. 3) is the father of the deceased. His statement is similar to the statement given by his wife.
12. Patiram (P.W. 7) in para 2 of his statement has stated that Paris John told him that an incident of theft took place in Shastri Nagar and at that place, the residents of that locality gave him beating and the police saved him. Paris. John was having a great pain. The rest of the statement is not material eithtr from the prosecution side or from the defence side.
13. Narsingh (P.W. 10) has stated in para 4 of his statement that he saw about 200 to 300 persons in front of his house. The police were investigating a case of theft and the Thanedar had arrested a boy whom he suspected to be the culprit. Thanedar and two other Police officials brought him on the road and gave him slaps. After that, the witness (P.W. 10) returned to his house. He has identified Hindoliya in the Court. Regarding the rest of the accused, lie said that he is not in a position to identify them. But when he was put a direct question whether it is a fact that Thanedar Hindoliya and the rest of the Police officials were beating Paris John with cane, he had to say that it is not true. After this, the witness was declared hostile by the prosecution, He hag contradicted material parts of the statement which he gave to the Police. Therefore, in my opinion, it will be difficult to hold that this witness has no sanctity for truth and his statement, n my opinion, cannot be believed for convicting the accused appellants. His statement is vacillating statement and benefit can be taken from his statement by prosecution as well as by the accused. I may mention here that when there are two stories put forward by the prosecution, the one which is beneficial to the accused should be accepted, and it need not be proved beyond reasonable doubt.
14. Radheshyam is P.W. 11. He is also a hostile witness.
15. Mohan Singh (P.W. 12) has gone to the extent of not identifying the accused persons who were standing in the Court. He is also declared to be a hostile witness.
16. Same is the condition of the statement of Jagdish Prasad (P.W. 13). He has said in para 2 of his statement that he is not in a position to say whether Thanedar Hindoliya is amongst the accused persons or not. He is not in a position to identify him also. His statement was recorded bv the C. I. D. Police after 2i years of the incident.
17. Brii Bihari Singh (P.W. 13) has stated in para 9 of his statement that when he enquired of Paris John as to how he was arrested by the Police, he stated that he has been arrested in a case of theft. Further, Paris John told him that the residents of Shastri Nagr gave him hard beating. If his condition had been serious, he would not have taken him in his custody.
18. Basantrao Mandre (P.W. 16) has taken a position to support the prosecution as well as the accused. To make the position clear, I may mention thit in para 6 of his statement, he has stated that Paris John was tied with a rope and the Police were giving him beating. He saw about 1 or 2 blows by a cane given by the Police. He further says that Paris John was uneasy. But, when he was asked as to whether he could identify Darogaji from the accused persons who were standing in the Court, he has stated that he could not single out Darogaji from the accused persons who were standing in the Court. From his statement also, it is not clear as to what exactly he wants to convey regarding the incident and the accused. But, one thing is clear that his statement is not worth believing.
19. Surai Singh Yadav (P.W. 19) does not take the story of the Drosecu-tion further. He has stated in para 7 that he came to know the name of the Police Inspector as Hindoliya. But he is not in a position to identify as to who is that man as they are not in dress today in the Court as they were at the time of the incident.
20. The statement of Dataram (P.W. 21) also is of no help to substantiate the story of the prosecution as his statement was recorded after two to three years after the death of Paris John. He has stated further that he does not know Hmdoliya, Thanedar. Neither the Police arranged any identification parade to get Hindoliya identified by this witness, Regarding the rest of the accused, he has again reiterated the same fact.
21. S. C. Nimbalkar (P.W. 25) is the Naib Tahsildar and he conducted the identification parade and witnesses Jag-dish Prasad, Surat Singh and Basantrao were asked to identify the accused. In para 3 of his statement, he has stated that Jagdish Prasad could not identify anyone, while Surat Singh identified only Bhagguram. Similarly, Basantrao I identified Bhagguram. Surat Singh and Basantrao told that on 97-1975, they, saw these persons in Shastri Nagar, but when I read para 7 of his statement, I must say that this identification parade is of no consequence. In para 7, he has stated that when the identification parade, was held, the accused were in their dress and their number plates were put on their dress. Before the identification parade, he also did not enquire from the witnesses as to the facial peculiarities of the accused. In para 9, he has stated that he could not say that on the day of identification parade, whether Bhagguram's eye was operated upon and he had a bandage on it. So. in my opinion, no benefit could be derived from the identification paraae which is conducted by this witness.
22. If the evidence produced by the prosecution is taken as a whole, certain points which come before roe are thai there was a theft by someone at Shastri Nagar. After committing the theft, the thief was caught by the residents of the locality. He was given a beating and in that beating, he received some injuries, but who were the persons who gave him beating is not clear from the evidence of the prosecution. Neither it is clear from the defence version. It is also clear that the accused went where the incident of theft had taken place and from that place, they caught hold of Ranu alias Paris John. After taking him into custody, he was brought to the Police Station, In the Police Station, he met other persons who were already in Police custody. These persons were knowing Ranu alias Paris John and they asked him what was the reason that, he is there. To them, he replied that he was found by residents of Shastri Nagar and they gave him beating thinking that he might be responsible for committing the theft. It is also clear from the evidence that certain implements of house breaking were seized from Paris John. Against this, there is evidence also led by prosecution that some Police Officer gave beating to Paris John and he was in pain, but exactly what were the injuries and who save the beating is shrouded in mystery. It would have been clear if the identification parade could have been held by the prosecution, but the manner in which the identification parade wag held by the prosecution is of no consequence as I have mentioned above. Even in the Court, the witnesses for prosecution have not identified the accused persons. Maybe, from fear or for any other reason which is not clear. But the fact remains that there are two different versions of the incident; one supporting the prosecution and the other supporting the defence taken by the accused. The story which supports the accused and also make their defence probable should be accepted as laid down by the Supreme Court in Pohalya Motya Valvi v. State of Maharashtra : 1979CriLJ1310 .
23. The other defect in the prosecution story is that the statements of the eye-witnesses were recorded after a long delay. Whatever benefit can be derived from this defect, the accused will Ret it. The cumulative effect of the evidence led by the prosecution, at the most, raises a suspicion against the accused. But, there is a long distance between 'may be true' and 'must be true' as laid down in Sarwan Singh v. State of Punjab : 1957CriLJ1014 . Therefore, in my opinion, there is no sufficient evidence led by the prosecution to come to a positive conclusion that Paris John's death was due to the alleg- ed beating given by the accused persons. Therefore, differing from the trial Com I, I am of the opinion that the prosecution has failed to prove the charge levelled against them Under Section 330, IPC. It is not proved that the accused have caused any hurt for the purpose of extracting from Paris John or from any person interested in Paris John to make any confession or to give any information which may lead to the detection of an offence Or misconduct or for the purpose of constraining Paris John or any person interested in Paris John to restore op to cause the restoration of any property or valuable security or to satisfy any claimA Or demand or to give information which may lead to the restoration of any property Or valuable security. Therefore, the conviction and sentence passed by the learned Additional Sessions Judge under this Section, I will have to set aside and they are set aside accordingly.
24. The other Section under which the accused are convicted is Under Section 203, IPC. To convict Under Section 203 IPC, the prosecution must prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; that he gave the information with respect to that offence; that the information so given was false; that when he gave such information, he knew oi believed it to be false. Now, the question, is whether the conviction of the accused Under Section 203, IPC is proper or not and it could be maintained against the accused. Ex. p/27 says that in Shastri Nagar, a crowd was seeing that they have caught a thief and they were giving him a beating. They were informed that they should not take law in their ..own hand and beat him. To this, somebody from the crowd told the Police Officer that they have a suspicion that the person who was receiving the beating has committed the theft in the locality and from him a chain and an instrument of cutting the lock were recovered and he was wandering in the locality in suspicious circumstances. Reading Ex. p/27 and taking into consideration the prosecution evidence, in my opinion, the ingredients required Under Section 203, IPC for conviction have not been proved by the prosecution evidence against the accused. Therefore, the conviction of the accused Under Section 203, IPC and sentence will have to be set aside and I set them aside accordingly.
25. Therefore, the result is that the appeal is allowed and the conviction and sentence passed against the appellants are set aside. The appellants are already on bail. Their bail bonds shall stand discharged. The amount of fine, if deposited, will be refunded.