Kanta Bhatnagar, J.
1. These three appeals are directed against the judgment dated March 23, 1982 passed by the learned Additional Sessions Judge, Raisinghnagar. As all the three appeals arise out of the same judgment and common questions are involved therein, we propose to dispose them of by a common judgment. By that judgment appellants Didarsingh, Darshan Singh, Jeetsingh, Balwantsingh, Trilochansingh alias Triloksingh, Gurdeep Singh alias Gura were convicted for the offence under Section 302/149 and 147 IPC and each of them was sentenced to imprisonment for life on the first count and a fine of Rs. 50/-, in default to undergo one months R.I. and one years R.I. on the second count. Trilochansingh and Gurdeepsingh were also convicted under Sections 342 & 365 IPC and sentenced to six months rigorous imprisonment each on the first count and similar sentence on the second count.
2. Succinctly narrated the prosecution case is that on October 30, 1979 Harbanskaur wife of Bachansingh asked Labhsingh (PW 7) to call her husband from the 'Dhani' of Didarsingh. Labsingh went to the 'Dhani' of Didarsingh, where he found Balwantsingh. Darshansingh and Didarsingh sitting outside the 'Dhani' Labhsingh asked Bachansingh to return to home. Bachan Singh told him that he would come after ten minutes. Labsingh informed Harbanskaur accordingly. Baldeosingh. (PW 10) went to the house of Bachan Singh to ask him about cattle fodder from him. On being informed about Bachansingh being at the 'Dhani' of Didarsingh, Baldeosingh went there and had a talk with Bachan Singh regarding the fodder. He was informed by Bachansingh that he had already sold the fodder. Bachansingh did not return to his house. At 8.30 Harbanskaur asked Darasingh (PW 4) her maternal uncle to go to the 'Dhani' of Didarsingh and bring Bachansingh. Darasingh went to the 'Dhani' of Didarsingh situated in his field at a distance of two miles from the 'Dhani' of the witness. The door of the room was closed. Darasingh standing outside peeped inside through the apparture and saw the six appellants giving a beating to Bachansingh and the latter being unable to speak. Gurdeepsingh and Trilochansingh came out and gave beating with lathis to Darasingh (PW 4). They caught hold of Darasingh and took him to another 'Dhani' at a distance of about two miles and tied his hands and feet with rope and confined him there. Gurdeepsingh and Trilochansingh kept constant watch over Darasingh (PW 4) so that he may not make good his escape. As Bachansingh had not returned, Harbans Kaur proceeded in his search. On the next day she went to Chak No. 47 GG. She also searched him at Kumpli and Ramsinghpura. As Per husband he was not available at any of those place she got a report scribed by a petition writer and went to Police Station Anoopgarh with Jasmalsingh and Mansingh. She presented the report Ex.P 2l on November 2, 1979 at 10.30 p.m. before PW 13 Swaroop Singh, SHO of that Police Station. The SHO registered a case under Sections 302, 201, 147, 148, 149 and 342 IPC and proceeded for investigation. He went to the 'Dhani' of Didarsingh and inspected the site. He prepared the site inspection memo and the site plan.
3. Darasingh (PW 4) was kept confined with his hands and feet tied with the rope by Gurdeepsingh and Trilocansingh for three nights and two days. In the morning of November 3, 1979 Gurdeepsingh and Trilochansingh talked among themselves that Police had reached the village. They untied the hands of Darasingh and directed aim to go straight to his house and threatened him, that, if did otherwise he would not be spared; After Trilochansingh and Gurdeepsingh leaving Darasingh the latter untied his feet and went to the colony. He found Police Constables there. He was examined by the Police At his instance the Police inspected the place where he was kept confined. The rope is also said to have been recovered by the Police. On November 9, 1979 SHO Swaroopsingh found the dead body of Bachansingh entangled in the twigs of Tumba in low level canal. The dead body was taken out and inquest memo Ex. P 13 was prepared. Post mortem of the dead body of Bachansingh was conducted by Dr. Jagdishsingh (PW 6) on November 9, 1979 at 4.00 p.m. The Doctor noted following injuries on the dead body:
(1) One verticle wound 4' x 1-1/2 x 1/4' on lateral side of left thigh 5' proximal to knee. Blood clots were present in wound;
(2) Legature marks of rope on distal fourth of right leg and ankle;
(3) Legature mark of rope on distal fourth of left leg and ankle;
(4) Blood clots present round the fractured end of right numerous;
(5) Blood clots present round the fractured end of left humerous.
4. The Doctor could not give any definite opinion about the cause of death of Bachansingh as the body was in advanced stage of decomposition. However, in the opinion of the Doctor cause of death was shock due to multiple injuries. The post mortem examination report is Ex.P22. The SHO arrested the appellants and in pursuance of the information furnished by them two legs of the cot and four lathis were recovered.
5. Upon completion of necessary investigation charge-sheet against appellants was filed in the Court of Munsif and Judicial Magistrate, Anoop Garh. The learned Magistrate finding a case exclusively triable by the Court of Sessions committed the appellants to the court of Sessions Judge, Rai Singh Nagar to stand their trial. The learned trial Judge charge-sheeted the appellants and at their denying the charges proceeded with the trial. Prosecution examined 13 witnesses in all to support the prosecution case. The appellants in their statements under Section 313 of the Code of Criminal Procedure totally denied the allegations levelled against them. No defence witness was examined. The learned trial Judge placed reliance on the prosecution witnesses and convicted and sentenced the appellants as stated earlier.
6. Feeling aggrieved by their conviction and sentences the appellants have come in appeal in this Court.
7. We heard Mr. Nandlal and Mr Mirdul Jain for appellants Jeet Singh, Trilochansingh and Balwantsingh, Mr. M.M. Singhvi for appellant Gurdeep Singh alias Gura and Mr. M.L. Garg for appellants Didar Singh and Darshansingh and Mr. G.M. Bhandari, Public Prosecutor for the State and carefully examined the record of the case.
8. At the very outset it may be observed that prosecution case mainly rests on the statement of Darasingh supported to some extent by the version given by Harbanskaur. Smt. Harbanskaur is the widow of deceased Bachan Singh. According to the prosecution Labhsingh (PW 7) and Baldeosingh (PW 10), the first at the instance of Smt. Harbanskaur and the second to find out about the fodder from Bachansingh had gone to the house of Didarsingh. Labhsingh was told by Bachansingh that he Would hi going to his house within ten minutes and that information he passed to Harbanskaur. Baldeo Singh did not tell anything to Smt. Harbanskaur after the alleged talk with Bachansingh at the house of Didarsingh. It is pertinent to note that both these witnesses have relied from their police statement that they had seen all the appellants there at the house of Didarsingh in the company of Bachansingh and stated at the trial that only Didarsingh and Darshansingh were there. These two witnesses have been declared hostile and the learned Public Prosecutor could not convince that these two witnesses are of any help to the prosecution. The learned Public Prosecutor agreed that the prosecution case rests on the testimony of Darasingh and Harbanskaur. So far as Harbanskaur (PW 5) is concerned, suffice it to say that she herself had not seen Bachansingh going or sitting at the house of Didarsingh and she has claimed the information through Lalsingh (PW 7) who as stated earlier has been disowned by the prosecution. What ever information through whatever source Harbanskaur might be having, the prosecution case is that she asked Darasingh that her husband was at the house of Didarsingh. Darasingh has stated that he went to the house of Didarsingh and peeped inside the room and saw the appellants giving a beafing to Bachansingh the latter was not in a position to speak. The learned Counsel for the appellants stated that small hole in the house for 'mori' and the statement of the Investigating Officer read in the light of the site plan shows that except the window and the door there is no hole in that room. The out-let for the water kept in the room is also known as 'mori' but in the present case this meaning cannot be applied because Darasingh has stated that he has seen the beating inside, standing outside and peeping through the 'mori'. The water out-let is at the base of the floor and the person standing cannot see through it. The learned trial Judge has taken the gapping lines between the planks of the wooden door leaves as 'mods' and has held that the witness Labhasingh might have seen the occurrence inside through them. The opinion of the learned Judge on this point may be correct but the important question is as to whether Darasingh was telling the truth that he had seen the occurrence. To judge it properly the statement of the witness and his conduct, examined in the light of the statement of Smt. Harbanskaur and her efforts to search her husband, will have to be looked into carefully. Darasingh (PW 4) has stated that he was given a beating by Trilochansingh and Gurdeepsingh outside the room and then those two appellants took him to a room at a distance of about one and a half mile. That he was kept there for three nights and two days with his hands and feet tied with rope. Learned Counsel for the appellants strenuously contended that if Darasingh would have been the witness of truth, prosecution would not have neglected to get his injuries medically examined. The learned Public Prosecutor submits that injuries might not be of such a nature that medical examination would have supported the prosecution case. There may be force in this argument of the learned Public Prosecutor but if the hands and feet of a person are kept tied for three nights and two days and he takes food and does his routine work with hands and feet tied then naturally by the movement of those parts of the body the rope would rub at that place and even if those parts are not injured marks of rubbing of the rope would certainly be there. Darasingh has stated that after three nights and two days he was left alone by Gurdeepsingh and Trilochansingh and they untied his hands. That he himself untied his feet and went to the colony where police had arrived. Thus it was not much after his hands and feet being untied that police had the occasion to see him. There being no evidence to substantiate the contention of Darasingh about his being kept confined as stated above, the learned Counsel for the appellants has a legitimate argument to advance that the story by Darasingh is a cooked one and no reliance should be placed upon what he has stated. As to when and where Darasingh was examined by the police is an important factor in the case. Darasingh has stated about Labsingh being present at the time Harbanskaur asked this witness to trace out her husband Bachan Singh. Harbanskaur (PW 5) has given a different version and stated that when she asked Darasingh to go to Didarsingh's 'Dhani' Labsingh was not present there and she was alone. This is not the only point where these two witnesses have contradicted each other. Regarding the time and place of the statement of Darasingh by Police also, the version given by these two witnesses is contradictory. Darasingh has stated that when he reached the colony from the place where he was kept confined, the S.H.O. recorded his statement and the time was 9-10 a.m. Harbanskaur has stated that Darasingh did not return after going in the night of 31st till 3rd when in the morning police arrived. Harbanskaur (PW 5) has stated that she lodged the report in the night at the Police Station and Sub-Inspector reached the village at about 7.00 a.m. on the next morning. That, the S.H.O. then went with her to the 'Dhani' of Didarsingh at 7.15 a.m. That, the S.H.O. remained at Didarsingh's 'Dhani' till after noon and she also remained with him all that time. That till 12.00 noon she had not seen Darasingh going to Didarsingh's 'Dhani'. She came to know about Darasingh going to the colony and she then went to the colony with the S.H.O. She further stated that Darasingh was sitting in the colony with Constables. Investigating Officer, Swaroopsingh, S.H.O (PW 13) has given altogether different version. According to him Darasingh went to him at Didarsingh's 'Dhani' at 1 or 1.15 p.m. and prior to that Darasingh did not present himself before him in the colony. According to Swaroopsingh when Darasingh went to him at the 'Dhani' at 1.00 or 1.15 p.m. Harbanskaur was not present there. The witness further stated that he could not remember whether he had seen the injuries of Darasingh or not. He, of course, admitted that he had not prepared any memo for Darasingh reaching there nor did he get him medically examined.
9. Motaram PW 2 belies Darasingh regarding his being in a confinement till the morning of the day Police arrived. Motaram has stated that the maternal uncle of Bachansingh who according to him was Darasingh, called him to his house thereafter he and 5-6 persons went to 17A at the house of Didarsingh where Darasingh told that Bachansingh was missing and he doubts that he had gone to the house of Didarsingh. At which the persons accompanying Darasingh inquired from Didarsingh and the latter told that he had not seen Bachansingh. That on the next day police reached the village where the witness was also called and his signatures were taken at five or six places. This witness has of course been declared hostile by the prosecution because he has not supported the prosecution case regarding Ex. P/4 the memo concerning the recovery of rope from a 'Kotha' where according to the prosecution Darasingh was kept confined but as regards the assembly of Panchas on the day previous to the police reaching the village no question has been put to him in the cross-examination by the P.P. The argument of the learned Counsel for the appellants that there is no reason to disbelieve the evidence of Motaram (PW 2) regarding Darasingh's presence on the day previous to the police reaching the site. Motaram has stated that he at the instance of Darasingh along with Panchas of the village had reached the site and police had reached the village at about 8.00 a.m. in the next morning.
10. The important point on which the learned Counsel for the appellants have emphasized about this witness is regarding the presence of Darasing on the day previous to the police arriving the village on third morning. If Dara Singh was in the village on second, the story of Dara Singh about his seeing the occurrence and two of the assailants taking him at the 'Dhani' of Didar Singh to a 'Kotha' at a distance of 1-1/2 mile and confining him there would be false. There is yet another important factor which constrains us to discard the statement of Dara Singh in toto. If Dara Singh was sent by Harbans Kaur and he did not return there, it was sufficient reason for Harbans Kaur to make an enquiry about Dara Singh and Bachan Singh in the night. Dara Singh's house was near her house. She in the natural course would have gone to Dara Singh's house to find out whether her husband could be traced or not. in case Dara Singh would not have been available there she would have informed his family members that she had sent Dara Singh to trace her husband and the former had not yet returned. Then the natural conduct of Harbans Kaur would have been either to have personally gone to Dara Singh's 'Dhani' or to send some body for Dara Singh who had not returned and to find out whether her husband was there. These facts create a doubt for the statement of Harbans Kaur that she had any knowledge about her husband being at the 'Dhani' of Didar Singh or sending Dara Singh to trace him out. In this regard the efforts made by Harbans Kaur subsequent thereto assume importance. She had no where stated that when Dara Singh did not return she tried to find out whether her husband and Dara Singh were at Didar Singh's 'Dhani' or not. As stated earlier she went to 47 GB, 11 AS Bhagsar, Kumpli and at Ramsinghpura in search of her husband and when he was not traceable at all those places, she filed a written report Ex. P 1 before the Police. In cross-examination she had stated that when Dara Singh did not return she went to Labh Singh's house which was at a distance of one and a half murabba. That, in the night she did not go to. any body else and on the next morning went to the places mentioned above. Bhagsar is four 'Kos' away from 47 GB. That she, reached 'Kumpli' at about 3.00 p.m. from Bhagsar and remained there. That, she did not tell any body about the missing of her husband. That she got the report typed by a Petition-Writer at 10.00 p.m. She stated that Jaimal Singh and Man Singh were with her when she got the report scribed by the Petition-Writer. Those two persons have not been examined. If Harbans Kaur was knowing that Bachan Singh was at Didar Singh's 'Dhani' then where was the question of her going to the various places as stated above. An important fact in this concern pointed out by the learned Counsel for the appellants is that till the time Harbans Kaur reported the matter to the Police she had not met Dara Singh nor had any body informed her about Bachan Singh being given a beating by the appellants. By that time it was not known that Bachan Singh was dead or that Dara Singh had been wrongfully confined. Then, how the Police registered a case under Sections 302, 201, 147, 148, 149 and 342 IPC. This is also relevant to note that there was no material with Harbans Kaur at the time that the assaillants, even if any, were five or more. As such the mentioning of 147, 349, 148 shows that the contents of the reports were not those which Harbans Kaur was knowing at the time of her going to the Police Station. This is also relevant to note that if Dara Singh was to be believed, he was interrogated for the first time by the Police on November 3, 1979 and on 2nd no body could have known about Dara Singh being wrongfully confined and the case being registered under Section 342 IPC is mentioned in the FIR Ex. P 20 chalked on the basis of the report Ex. P 21 filed by Harbans Kaur.
11. Mr. Garg, learned Counsel for the appellants submitted that the FIR reached the concerned Magistrate on November 5, 1979. From the facts mentioned in the FIR this much is deductable that those facts could not have been in the knowledge of Harbans Kaur or the Police because as stated earlier no body was knowing at that time what had happened with Bachan Singh and where Dara Singh was kept confined by the miscreants. It was only on 3rd after the Police reaching the village that Dara Singh is stated to have been examined. From such facts, Mr. Garg emphatically argued that Harbans Kaur might not have informed the Police rather subsequent improvement was made in the story after the Police reaching the site and starting investigation.
12. In view of the aforesaid discussion of the statements of Harbans Kaur and Dara Singh and their unnatural conduct, we are not inclined to place any reliance on their version and do not find any justification in the conviction of the appellants on their testimonies. The alleged recovery of the weapons such as the legs of the cot and the lathies at the instance of the appellants need not detain us much because there is no material to connect them with the commission of the crime. The learned Sessions Judge has also not attached any importance to its.
13. In these circumstances, we come to the conclusion that prosecution could not establish the case against the appellant for any offence beyond all shadow of reasonable doubt and the judgment of conviction by the trial Court cannot be sustained.
14. Consequently, the appeals filed by Didar Singh, Dara Singh, Jeet Singh, Balwant Singh, Trilochan Singh and Gura Singh alias Gurdeo Singh are allowed and their conviction and sentences passed by the learned Addl. Sessions Judge, Rai Singh Nagar are set aside and' they are acquitted of the charges levelled against them. Appellants Didar Singh, Darshan Singh and Balwant Singh ate on bail. Their bail bonds stand discharged. Appellants Trilochan Singh, Jeet Singh and Gura Singh alias Gurdeosingh are in custody. They shall toe set at liberty forthwith if not required in any other case.