K.S. Sidhu, J.
1. The appellants Jhuntha Ram, Chhaju Ram Banwari, and Ganpat were tried, along with Moola and Sheopal, by the learned Sessions Judge, Jhunjhunu for offences against Sections 302, 149, 147, 458 and 323, 149 I.P.C. for inflicting injuries to Gulla deceased and P.W. Jhabar and thereby causing the death of Gulla. The learned Judge acquitted all of them of the offences against Sections 147, 302, 149 and 458 I.P.C. Moola and Sheopal were acquitted of all the charges framed against them Jhuntha Ram, Chhaju Ram, and Banwari were found guilty of causing grievous hurt with blunt weapon to Gulla deceased and thus convicted under Section 325 read with Section 34 I.P.C. They were sentenced to rigorous imprisonment for a term of five years each. Ganpat was found guilty of causing hurt to Jhabar P.W. and thus convicted under Section 323 IPC to a sentence of rigorous imprisonment for two months.
2. Jhuntha Ram Chhaju Ram, Banwari and Ganpat have appealed from the aforementioned order of conviction and sentence against them.
3. The prosecution against the 6 accused mentioned above was launched or, the police report submitted on the basis of the FIR registered at Police Station Khetri at the instance of P.W. Harnath on October, 22 1972 at 3 p.m. The allegations contained in the FIR may be briefly recapitulated here. On October 21, 1972 at about 7 or 8 p.m. Gulla deceased an his sons Jhabar P.W. and Harnath complainant were present inside their house Gulla was lying in a cot. Harnath heard the souts of 'thief thief' from out side his house. Six prisons namely, jhuntha Ram, Chhaju Ram, Banwari Sheopal Ganpat and Moola, armed with sticks, entered the complainant's house. They attacked Gulla & his sons. Jhuntha Ram, Chhaju Ram & Banwari structed stick blows to Gulla. As a result of these blows, Gulla fell down on the ground Jhabar P.W. went forward to save his father from further blows. Sheopal, Ganpat and Moola charged at Jhabar inflicting number of blows to him. Harnath, however, managed to escape, for the hurriedly went into a room and concealed himself there. Jhuntha Ram also suffered some injuries in the course of this transaction. He along with his companions ran away from the house of the complainant after committing the crimes aforementioned. The accused forcibly took Gulla deceased with them and kept him wrongfully confined in Jhuntha Ram's house till the time of the reporting of the occurrence to the police. Prahalad, Mala, Panna and Prabhau witnessed the occurrence. Complainant Harnath sent his brother sohan from his house to report the matter to the police that very night. It is alleged that one Krishna did not let Sohan go to the police that night holding out the promise that he would bring about a compromise between the parties. Harnath lodged this report with the police adding that at the time of reporting the occurrence his lather Gulla was being kept still wrongfully confined in Juntha Ram's house.
4. It was on these allegations made by the complainant Harnath that the police registered a case under Sections 147, 448 & 342 IPC. It was during the investigation and after the death of Gulla that the case was converted into one under Sections 302 read with Section 149 and 458 IPC.
5. During the trial the prosecution examined among others Harnath Jhabar, Prahlad, Prabhati and Mala Ram as witnesses in support of its case.
6. In their statements under Section 342 Cr.P.C. the accused denied the allegations against them and pleaded that Gulla deceased and his son Jhabar P.W. had committed theft of wheat crop lying harvested in the field of Jhuntha Ram accused and that on being discovered in time, Jhuntha Ram and a crowd of 50-60 villagers chased them raising the alarm of 'thief-thief' Gulla deceased and Jhabar P.W. jettisoned their head-loads of stolen property and ran away The crowd gave a hot chase Some of the chasers gave stick blows to both Gulla and Jhabar, who eventually reached their Guwari in an injured condition.
7. In support of the defence version, the accused produced DW Surjan and Maliya whose presence at the spot is said to have been admitted by the complainant Harnath in his testimony in the court. DW Surjan and Maliya testified that on being seen getting away from the field of Jhuntha Ram after committing theft of wheat crop Gulla deceased and his son Jhabar were given a hot chase by a crowd consisting of 50-60 persons and that some of the chasers struck lathi blows to them.
8. Relying on the testimony of PWs Harnath Jhabar, Prabhati Prahlad and Milaram, the learned trial Judge has held Jhuntha Ram, Chhaju Ram and Banwari guilty of causing grevious hurt to Gulla deceased and, therefore, convicted and sentenced them under Section 325 read with Section 34 IPC. He has convicted Ganpat under Section 323 IPC far causing hurt to Jhabar P.W. He acquitted Moola and Sheopal holding that their participation in the commission of crime charged against them is not proved beyond doubt.
9. I have very carefully considered the depositions of PWs Harnath, Jhabar, Prahlad, Prabhati and Mala Ram and I am of opinion that their evidence is wholly unreliable P.W. Harnath, who had lodged the FIR and whose statements were recorded by the police and in the committing court, has materially changed the version in the trial and made a statement making substantial improvements on and departure from his previous statement. In the FIR Ex. P. 1 he had stated that 50 60 persons, who came shouting slogans from the direction of Jhuntha Ram's house to his house had all entered his house. In the trial he stated that only 6 accused had entered his house He further stated that Chhaju Ram, Jhuntha Ram and Banwari inflicted stick blows to his father and that the other three namely Ganpat, Sheopal and Moola inflicted similar blows to Jhabar PW. In his statement during the investigation he had told the police that the assailants of his father had entered his house earlier and that the assailants of Jhabar came a little later. In the trial he stated that all of them had entered the house together. He further stated in the trial that the 6 accused had dragged away his father to Jhuntha Ram's house and kept him confined there. There is no evidence on record to prove that Gulla deceased was ever kept confined in Jhuntha Ram's house and that he was removed from there to the hospital. The story regarding Gulla deceased having been dragged away and kept confined in Jhuntha Ram's house is obviously false.
10. P.W. Jhabar stated that when he returned home from Kapar he found that his father Gulla deceased was under attack by Chhaju Ram, Jhuntha Ram and Banwari and that Ganpat Moola and Sheopal accused were also present there. This would show that Jhabar was not present in the house at the time when the accused are said to have entered it. In cross-examination Jhabar insisted that he had reached his house a few minutes before the accused entered there His statement in cross examination must be ignored as an after-thought. His attention was drawn to his earlier statement during the investigation wherein he had stated that 100 or 150 persons had entered their house and that Ganpat, Moola and Sheopal had arrived there a Little later. He denied that he had made any such statement to the police and asserted that it had been incorrectly recorded by them.
11. PWs. Prahlad, Prabhati, and Moola Ram are close relations of complainant Harnath and P.W. Jhabar A close scrutiny of their testimony would show that they and other witnesses namely Jhabar and Harnath were not telling the truth. For example, Prahlad, who claims to have witnessed the occurrence made no mention of any of the 6 accused giving beating to Jhabar P.W. in earlier part of his statement He opened his statement with the allegation that all the 6 accused concentrated their attack on Gulla deceased, and caused injuries to him. He made it clear that they did not inflict any injury to any person other than Gulla in his presence. He, however, changed the version little later in as much as he added that Ganpat and Sheopal caused injuries to Jhabar. He evidently excluded Moola from the array of the assailants of Jhabar In his statement during the investigation he did not mention that the accused had caused any injury to Jhabar.
12. P.W. Prabhati also made material improvements in his testimony in the court as compared to his statements Ex D/9 and Ex. D/10 recorded earlier. He testified that he had heard the crowd shouting 'Mario Mario' and running the direction of Gulla's house.
13. P.W. Mala Ram stated that the six accused had caused grevious beating to Gulla deceased. It is note worthy that this witness made no mention of any assault by any accused to Jhabar PW.
14. Sizing up the statements of the aforementioned PWs, it would be reasonable to believe that Gulla deceased and his son Jhabar were given a hot chase by a crowd of 50-60 villagers and that they sustained injuries at the hands of the members of the crowd in the course of that chase. DWs Surjau Singh and Maliya whose presence at the time of occurrence is admitted by none else than complainant Harnath himself, have fully supported the defence version in that behalf.
15. All said and done therefore, I am of opinion that the case against the appellants is not proved beyond reasonable doubt I would accordingly allow this appeal, set aside the order of conviction and sentence and instead acquit the appellants they are on bail. Their bail bonds are discharged.