Bapna, J. - (1.) THESE five appeals have been preferred by eight persons, Rupji, Gamira, Lalu, Chunia, Narji, Kehra, Chamna and Savla, who have been convicted under section 330 of the Penal Code, and sentenced to four months' rigorous imprisonment each by the Additional Sessions Judge, Banswara. The first four appellants filed separate appeals, which are appeals Nos. 20, 21, 22 and 23, while the last four have file 1 one appeal, which is appeal No. 25 of 1950.
(2.) THE case for the prosecution is that Mst. Champi, wife of Bhurji Nat, disappeared from village Dhanku, whereupon a committee of Bhils, also known as Bhil Police, sent for Hem Chand, his son Shaitan, and brother Lal Chand to appear before the committee on the 18th May, 1948. Savla accused is the person who was sent to call them. THE committee is alleged to have met at the house of Moti. It is alleged that when Hem Chand, Shaitan and Lal Chand appeared before them, Gamira asked Shaitan to disclose where he had decoyed Champi. THE suspicion against Shaitan was that he had managed to send her away in order to be made mistress of one Lala. Shaitan denied having anything to do with the disappearance of Champi, whereupon Chimna accused directed his companions, including the seven other accused, to make him stand in the sun so that he may tell the truth. This was done, and Shaitan was questioned further and directed to tell the truth about Champi. On Shaitan's denying having knowledge about her, he was beaten by lathies by all the eight accused, who were standing round about him. Hem Chand at that stage protested that his son was innocent, and may not be beaten, whereupon Kehra appellant is alleged to have slapped him, and Chunia appellant struck him with a lathi on the neck. When evening fell, Shaitan and Hem Chand went away followed by Lal Chand. THE report of the incident was made on the 23rd of May, 1948, to Sub-Inspector Durjan Singh in village Mokhia, where he had gone in connection with certain investigation. An offence was registered at Police Station Arthuna, and the injured were directed to go to hospital, Gandi, for medical examination. As the doctor was not present, Hem Chand and Lal Chand went to Pratappura Hospital, and there after all the eight accused were challaned to the Court of the First Class Extra Magistrate, Banswara, who committed all the accused to the Court of Session under section 330 of the Penal Code. The accused denied the charge, and put up a two-fold defence. It was stated by some of the accused that they had decided to stop giving grain to the Nats, and on that account they had been falsely implicated. The other defence was that they were the residents of a village in the Jagir of Mr. Ratan Singh, Deputy Superintendent of Police, Banswara, and refused to serve in Begar, and the said officer had induced the Nats to lay this false complaint in order to harass them. The trial court accepted the version of the prosecution, and convicted and sentenced the accused as aforesaid. The prosecution produced six witnesses in this case, of whom four, viz. , P. W. 1 Hemchand, P. W. 2 Shaitan, P. W. 3 Lal Chand, and P. W. 4 Bhurji, purport to be eye-witnesses. According to Hem Chand, the information regarding the elopement or abduction of Champi was sought to be extorted from Shaitan, and the witness and Lal Chand were only beaten when they tried to intervene. Lal Chand, P. W. 3, however, clearly states that he was not beaten by anybody. According to P. W. 5 Dr. Harilal, there was no mark of injury on Lal Chand. The only persons, who were beaten, were therefore, Shaitan and his father Hem Chand. The charge framed in this case was that all the three persons, Hem Chand, Shaitan and Lal Chand, were assaulted and hurt caused to them in order to extort from them the information about the elopement or abduction of Mst. Champi. The charge was manifestly erroneous in so far as the entire prosecution evidence only purports to say that it was Shaitan from whom the information or confession was sought to be extorted. The ingredients of the offence under section 330, as relevant to this case are that:- (1) hurt should be caused to a person, (2) for the purpose of extorting any confession or information which may lead to the detection of an offence or misconduct. (3) In the alternative, that hurt be caused to a person so that any person interested in the sufferer "may be compelled to confess or give any information of the above description, According to all the four witnesses it was Shaitan who was asked to give information about Champi, and on his denying having any knowledge about it was assaulted with the object-of compelling him to disclose the information about Champi's elopement or abduction. According to Shaitan, P. W. 2 Gamira and Chunia gave him lathi blows while the rest of the eight accused beat him with slaps and fists. Hem Chand, P. W. 1 on the other hand, states that all the eight accused beat Shaitan With lathies. Similar is the statement of Lal Chand, P. W, 3, and Bhurji, P. W. 4 Shaitan makes a statement that he went to the Hospital and was examined by the doctor, and that an injury sheet was prepared. The prosecution, however, did not produce the injury sheet, and it appears from other evidence that Shaitan was not at all medically examined. Hemchand and Lalchand, father and uncle of Shaitan, clearly state that Shaitan did not go to the hospital for medical examination. P. W. 5, Dr. Harilal, also states that he only examined Lal Chand and Hem Chand. In the absence of a medical report, which could be the best evidence as regards the injury on Shaitan, the case of assault by the accused on Shaitan becomes very unreliable. No reason has been given as to why the police did not send Shaitan for medical examination, and in the absence of the best corroborative evidence available, the version of hurt being caused to Shaitan falls to the ground. If the the ingredient of hurt does not stand proved, the offence under section 330 of the Penal Code is not made out. Whatever enquiry may have been made by alleged members of the committee, the offence under section 330 is only made out if hurt is caused in order to extort information. There has been delay in the filing of the first information report, and while something can be said for the prosecution that in the state of civilization prevalent among the nomadic tribes of Banswara, some sort of disinclination to go to local authority may be excused, yet in the present case there was a delay of five days and according to the Sub-Inspector of Arthuna, the report was lodged only when he was out on tour to Mokhia village about half a mile from the scene of incident. But Hem Chand, who made the report, gives some other version that he was asked to go to Banswara, and there make a report. This, however, does not find support it the statement of Durjan Singh, Sub-Inspector, P. W. 6. Another explanation given by Hem Chand is that he was unable to walk. He does not say further whether it was on account of any injury which he received, or any illness which intervened, that he could not go to the Police Station. The charge under section 330 is a very serious charge, and the more serious the charge, the more convincing should be the evidence to prove it. There are certain major contradictions in this case. The first important print is as to the number of persons in the committee before whom Hem Chand, Shaitan and Lal Chand appeared. According to Hem Chand there were 100 persons in the committee. Shaitan reduced the number to 25, and Bhurji further reduced the number to 8. In other words, according to Bhurji there were only the 8 accused appellants who were there in the committee. Hem Chand, Shaitan and Bhurji have not hesitated to exaggerate facts in so far as they stated that Lal Chand was also given a beating. Lal Chand, as mentioned above, stated that he was not at all beaten. In the aforesaid circumstances, the offence under section 330 is not made out against any of the accused as regards the treatment meted out to Shaitan. As regards Hem Chand, he is only alleged to have been assaulted when he tried to entreat that Shaitan should not be beaten. As regards Lal Chand, he was not at all beaten. The only other point, which requires consideration, is as to whether Hem Chand was beaten, and if so, which of the accused can be held responsible, and for what offence. According to Hem Chand, Kehra slapped and Chunia gave a lathi blow on his neck. Shaitan, P. W. 2 also states that Chunia gave a lathi blow to Hem Chand. Lal Chand, while naming Chunia, makes him only one of the several assailants. His evidence that several persons gave lathi blows to Hem Chand is not corroborated by medical evidence, Hem Chand was found to have a faint mark of contusion on the neck 2" x 1/3", on the 28th of May, 1948, when he was examined. The evidence of Hem Chand in so far as it implicates Chunia thus finds corroboration in the evidence of the doctor. I hold Chunia guilty of causing hurt to Hem Chand, and thereby committing an offence under section 323 of the Penal Code. The appeals of Rupji, Gamira, Lalu, Narji, Kehra, Chamna, and Savla are accepted, and they are acquitted of the charge under section 330 of the Penal Code, with which they have been convicted. I also accept the appeal of Chunia, but alter his conviction from one under section 330 of the Penal Code to one under section 323 of the Code. As regards sentence, Chunia was convicted by the Additional Sessions Judge on the 9th October, 1950, and served a sentence of rigorous imprisonment till the 28th of October, 1950, when he was released on bail pending decision of his appeal. He has suffered rigorous imprisonment for 20 days. In the circumstances, I consider that this punishment is ample. The sentence passed on him under section 330 is reduced to the period of imprisonment which he has already undergone under altered conviction under section 323. All the eight accused are on bail, and are present. Their bonds for attendance are hereby cancelled. .;