Chet Ram Thakur, J.
1. This is an appeal by Haria and his two sons Bhot and Naraish against the orders of their convictions and sentences passed by the learned Additional Sessions Judge, Dharamsala. Haria has been convicted under Section 201, 1. P. C. and is sentenced to three yours' rigorous imprisonment and a fine of Rs. 500/- for having caused disappearance of the evidence of murder. The other two accused have been convicted under Sections 302 and 201, I.P.C. and they have been sentenced to life imprisonment with a fine of Rs. 500/- each. It is said that Krishan Kumar Patwari of Circle Jhajja Kothi was murdered by the accused Bhot and Naraish by giving blows to him at their house on the intervening night of Ifitii and 17lh of April, 1971 and their father disposed of the body with the object to screen the offenders from lawful consequences of murder.
2. Krishan Kumar, who was posted as Patwari since March, 1971 belonged to Chambu Town and according to the prosecution he was at Chamba on the 13th, ]4th and 15th of April and on the 16th he left for his place of duty in Jhajja Kothi in Churah Tehsil. Thereafter his whereabouts were not known, Salyagar Ram Office Quanungo sent a report: to the Police Station, Tissa to the effect that Krishau Kumar Patwari was missing since 16th April, 1971. Thereafter a search was made and during the inquiry it was revealed that the said Patwari on 15th or 16th April was seen lying on the road, a little distance beyond a bridge known as 'Kereu'. He was dead drunk. For the night he stayed at the house of the accused-persons in village Perur and that he was murdered by Bhot and Naraish with Thollan (a wooden stick to beat the clothes while washing) whereas the father had been dissuading them from doing so. However the father also disposed of the body of the deceased. A case was accordingly registered under Sections 302 and 201, I.P.C. The police made some recoveries at the instance of the accused-persons pursuant to some disclosure statements.
3. Befor the learned Sessions Judge twenty witnesses have been examined. The, only eye-witness in the case was one Sukh Dev (P. W. 19), a boy of 13 years of age. The learned Sessions Judge having relied opon the statement of this witness coupled with the recoveries and the statements of some other witnesses who stated to have seen Krishan Kumar Patwari lying in a drunken state at a little distance ahead of the Keren bridge convicted the accused and sentenced them as stated above.
4. In appeal, Mr. Chitkara, learned counsel for the appellants has read out the evidence with the object of impressing upon the Court that there was nothing in the evidence to indicate if the accused murdered the Patwari. The only evidence was of Sukh Dev (P. W. 19) who was a child witness, moreover his statement could not be pressed into service against the accused as he is a tutored witness. The learned Advocate-General also has read out the judgment to show that the same was well balanced. The learned Sessions Judge recorded the evidence and had an occasion to see the demeanour of witnesses and the appellate Court which sees the evidence in cold print should not set aside the findings of the trial Court unless they are manifestly wrong and there is no evidence at all on record to support them. Secondly where the trial Court has overlooked and not adverted to the clinching pieces of evidence running contrary to its findings and that the trial Court has not scrutinised the evidence properly and has simply jumbled the evidence together and came to a conclusion which is non-sequitur. Reliance is placed on. Pearey Lal v. Nanalc Chand AIR 1948 PC 108 and In re Mohiddin AIR 1952 Mud 561 : (1952 Cri LJ 1245). lie was right in basing conviction on the testimony or Sukh Dev (P. W. 19), who was a witness to the occurrence and further there was a recovery of Thollan and clothes with human blood-stains thereon.
5. After having heard the learned counsel for the appellants and the learned Advocate-General and having perused the evidence, I am of the view, that no conviction can be based on the evidence placed on the record. The learned Sessions Judge lias misdirected himself in interpreting and placing reliance on the testimony of Sukh Dev (P. W. 19). If he had correctly analysed the evidence the learned Sessions Judge would not have come to the conclusion that he did. In my opinion, on the evidence before us no conviction can be based against the accused-appellants and they have wrongly been convicted and they are entitled to be acquitted.
6. Ex. P.W. 1/A is a report of disappearance of the Patwari made by the Office Quanungo on 30th of April, 1971. It shows that the Patwari was missing since Irish of April, 1971 and he got this information from report, dated 2(its of April, J971 made! by the Cirdawar Halqa Jhania, who was also informed by Partap Chand peon on 23rd April, 1971 after making a search for the Patwari. Again from this report it appears that the Girdawar also made an inquiry and he found on the examination of Gulla Gharewala resident of Katla and Des Raj that the Patwari was last seen by them on the 27th of April, 1971. Satya-gar has gone in the witness box as P.W. 1. lie has proved this report Ex. P.W. 1/A. But strange it is that neither the report made by the Girdawar Halqa Jhania nor Gulla Ghorewala and Des Raj who are alleged to have seen the Patwari last on the 27th of April, 197.1 were produced. If he was seen alive on the 27th April, how could the accused be charged for murder of (he Patwari on an earlier dale i.e. the 16th April.
7. P.W. 3 was a liquor vendor at Banjraru in the year 1971. According to him the Patwari of Jhajju Ivothi was one Sethi, who had purchased liquor from him on the 15th or Ifith of April whereas the statement of P.W. 1 is that Krishan Kumar was the Patwari of Jhajja Kothi. Smt. Bimlu Devi (P. W. 15) is the wife of Krishan Kumar and Karam Singh (P. W. 16) is his father. They had appeared in the witness-box and they have not stated anything is Krishan Kumar used to be known by his surname Sethi. Therefore, it is difficult to say if it was the same Patwari who had purchased liquor from P.W. 3 or it was Krishan Kumar Palwari. The identity, therefore, has not been established and the prosecution has not made any endeavour to establish the identity to connect this fact that Krishan Kumar was known as Sethi also.
8. P.W. 5 has been produced by the prosecution to show that on the 3rd of Baisakh corresponding to 15th of April in the evening he had seen one man going towards village Pcrur in an unsteady gait meaning thereby that he had taken liquor and later on he learnt that that man was a patwari of Chamba. He had no talk with that man and from his cross-examination it would be clear that the police had told him that that man was the patwari of Jhajja Kothi. In ExamiDation-in chief he has stated that lie did not talk to the man nor he was known to him. Therefore, there was no occasion for him to know that he was a patwari of Jhajja kothi. This statement that he was a patwari of Chamba is made by the witness at the instance of the police which statement therefore cannot be given any credence.
9. P.W. 5 is a widow of one Shankar of village Bihal and she also makes a very weak type of statement when she stated that she had seen one person who was drunk and was going a little distance away from her shop. So there is no wonder if she might have seen any man in a drunken state passing by her shop. But the question is whether she knew the man? In her cross-examination she says that that person, who was drunk was not known to her and that she learnt later on from the police that that man was a Patwari. Hence her statement also does not lend any support to the prosecution story.
10. Nirmal Ram (P. W. 7) is a President of Cram Panehayat Thanaee and his statement does not deserve to be commented upon because he is talking about the extra judicial confession which has rightly been rejected by the learned Sessions Judge. One thing is noteworthy in his statement that he says that the police visited the spot and Bhot accused gave Neslumdehi of the Muffler and got the same recovered. The police contented itself by the recovery without its production and proof in the Court. The non-production of the Muffler shows that it did not in any way connect either the Patwari with the Muffler or the accused with the commission of the offence. Similarly P.W. 8 stated to have seen a person putting on a black pant sitting bare-headed a little distance ahead of the bridge but: lie was not known to him and he asked him to accompany them and addressed him as Master, whereupon he told that he was Sethi Patwari of Halqa Jhajja Kothi and not a Master. He has lather slated that that Patwari went with Parshotam, Nanku and Kaithu. It is stated that Parshotam has since died, but the prosecution withheld the other two persons who were alive. Moreover, the identity of the Patwari has not been established by the statement of this witness also because he says that he was Sethi Patwari as told by that man who was lying there near the bridge by the hill side.
11. Nunak Chand (P. W. 9) also like P. W: 8 states to have seen the Patwari who was not known to him near the bridge. Since he also did not know the man, therefore, it is difficult to infer from his statement that it was Krishan Kumar Patwari about whom he is making the statement. He says that he and Kaithu took that Patwari with them upto their village and thereafter the Patwari went with Par-shotam. Therefore, he contradicts Kabli Ram (P. W. 9). P.W. 10 also went in the company of P. Ws. 8 and 9 at about 5.00 p.m. after the close of their work and they all witnessed the person lying on the road, Kabli Ram addressed that man 'Master John' and he said that he was not a Master, rather he was a Patwari of Jhajja Kothi and Kabli Ram lifted him and took him ahead. Pie also does not make any material statement whereby it can be said that they ever saw the accused taking the Patwaii with them or the Patwari went to the house of the accused-appellants rather he says that he was taken by Kabli Rani which is denied by Kabli Ram and he further says that he was taken by Parshotam who has since died.
12. Gokal (P.W. 11) states about the production of bangles by one Smt. Naro, the sister of Bhot accused. But this is contradictory to the disclosure statement made by the accused who stated that they had kept the bangles at their house. However the recovery of these bangles does not advance the case of the prosecution. The bangles are of ordinary type and are available easily. There are no particular marks on them. The recovery of the money amounting to Rs. 84/- is also not material because this is not a very huge amount which cannot be expected to be with the accused. He further states about the recovery of the Tholian. The disclosure statement was alleged to have been made by Naraish and the recovery of Tholian was made by Bhot. This recovery is also not of any consequence inasmuch as that Tholian did not contain any blood on it nor it was concealed. It was lying in side the house, and, therefore, it does not connect the accused with the commission of the offience.
13. The most material witness who has been produced by the prosecution is Shri Sukh Devi (P. W. 19), who is said to be the eye-witness of the occurrence and on whose statement the learned Sessions Judge placed reliance. In my opinion, the statement of the witness has wrongly been relied upon by the learned Sessions Judge. He says that he went at the house of the accused only for the first time on that day although he claims relationship with the family of the accused. According to him he is working on the dam and after the close of the work he went to his relation Gokal (P. W.). There he had his meals and then he went to the house of the accused and the explanation given for his visit to the house of the accused is that he had kept his coat and umbrella at the house of the accused. He had never gone there before or after and therefore it does not stand to reason why he had particularly chosen that day to keep his coat and umbrella there at the house of the accused. He says that Haria accused brought the Patwari from outside from the bushes of hemp and he was the same man whom he had seen on the road. After they had taken their meals they went to sleep. At midnight Haria and Naraish got up and lit the lantern. Naraish, Bhot and Haria began to beat the Patwari. Naraish had a danda, Bhot had a Tholian and Haria had nothing with him. Haria dissuaded them, but they did not agree. They continued beating the Patwari for 10 or 15 minutes and then all these three persons took the Patwari outside. The Patwari did not raise any hue and cry as he was not in his senses.
14. It is not understood why Haria who wanted to dissuade the other two accused from giving healings to the Fatwari should have gut up and lit the lantern at mid-night. He has stated that these accused then returned to the house after two hours but the Patwari was not with them which means that they had disposed of the body. It is significant to note that the witness does not know as to what were the clothes worn by the Patwari. Although he had first seen the Patwari lying on the roadside ahead of the bridge in the day and again he had seen him brought by the accused from the hushes of hemp and again he witnesses the beatings given by the accused-persons to him yet he betrays ignorance about the clothes on the person of the Patwari. If lie had actually seen the Patwari at three occasions then it is beyond my comprehension as to why he could not see the clothes on the person of the Patwari at that time. Be that as it may the effect of his testimony stands washed off by his answers in cross-examination when ho says that he was kept in the police station for 10 or 15 days. The Thanedar had told him that he had seen such and such occurrence and that he should state such and such facts. He had given the statement as was tutored to him by the police. After he had made the statement he was taken by the Thanedar to Chamba to the residence of the Superintendent of Police. His attendance was marked at Jokaiu on that day, although he was absent from the work. Therefore, the only conclusion that, can be deduced is that the witness liad never gone at the house of the accused. lie had not seen either Krishan Kumar lying on the road-side or at the house of the accused being beaten by the accused and whatever lie had stated in the Court is a tissue of lies as a result of tutoring by the police. Therefore, the statement of this witness is not oven worth the paper on which it is written.
15. If the statement of this witness is disbelieved then there is nothing on the record to show if he was done to death by the accused. The only evidence on the record is that a man was seen on the 2nd or 3rd Baisakh, i.e. on 14th or 15th April lying on the road-side in a drunken state beyond a bridge and when he was asked by some of the witnesses 'Master it the' then he replied that he was not a Master, but he was a Patwari of Jhajja Kothi. But there-is no cogent evidence whether he was Sethi Palwari or Krishan Kumar Patwari. Kabli Ham and Nanak ('hand have stated that he was taken by them to a particular place and thereafter he was taken by Farshotam who is no more in the land of living and beyond that there is no evidence where he went. In so far as his wife and father are concerned they shited that he left on the that of April. According lo report Ex. P.W. I/A he was seen on the 27lh by Culla and Des Raj hut those persons were not produced. It is doubtful whether Krishan Kumar Patwari has died or he is still alive and is missing, But one thing is clear that there is no evidence on the record about the murder being committed by the accused because the only witness P.W. 19 who has been relied upon by the learned Sessions Judge has stated that he deposed whatever was tutored to him by the police and that he was kept there for 10 or 15 days at the police station. He is a young lad of 13 or 14 years and such a young boy can easily be tutored. More so when he is under the tear of the police for considerably a long time, Therefore, in these circumstances I have no hesitation in holding that the learned Sessions Judge has not taken a correct appraisal of the evidence and the statement of P.W. 19 has wrongly been pressed into service in favour of the prosecution when he had madaj it explicit in his cross-examination that h was tutored.
16. Consequently the appeal succeeds and is hereby allowed and the result is that the accused-persons are acquitted of the charges and are set free.
D. B. Lal, J.