Ranawat, J. - (1.) THIS is an appeal of accused Daryai Ram against the judgment of the Sessions Judge, Alwar, dated the 28th July, 1951, by which Daryai Ram was convicted of offences under secs. 302 and 392 I. P. C. and sentenced to death and to two years* rigorous imprisonment respectively. The case was also submitted by the Sessions Judge to this court for confirmation of the sentence of death passed by him. THIS judgment would govern both the cases.
(2.) DARYAI Ram is a Sindhi boy of 13 to 17 years of age. He migrated to India from Pakistan after the partition of India and was living at village Sirmohar in Alwar District. It is alleged on behalf of the prosecution that on the 27th of August 1950 Daryai Ram along with Dharmoo-ram, a boy of 8 years, went out for grazing cattle in the morning. Dharmoo, it is said, had a pair of gold ear-rings and a silver kara and a white shirt with black stripes on his person. In the noon when Dharmoo did not return to his house his father went out in his search. On the 28th of August 1950 Tandan Ram, father of Dharmoo, went to village Gandi and met Atmaram in the evening and told him about the loss of his son. Atmaram told Tandan Ram that he had taken a pair of gold ear-ring from a boy named Daryai Ram who was trying to sell them to a displaced person who runs a goldsmith's shop in village Govindgarh. Tandan Ram saw the gold ear-rings and recognised them to be the same which Dharmoo was wearing at the time he left his house on the 27th of August in the morning. Tandan Ram returned to his village and summoned a Panchayat of elderly persons in the village. Daryai Ram was brought before the Panchayat and was questioned about Dharmoo. In the beginning Daryai Ram said that he did not know anything about Dharmoo but when he was given to understand that he would not be surrendered to the police and that no action would be taken against him he confessed that he had killed Dharmoo by throttling him and he had removed the gold ear-rings and the silver kara (bangle) of Dharmoo. The silver bangle, he said, he had sold to a goldsmith in village Gandi for annas ten and he had given the gold ear-rings to Atmaram. Daryai Ram then took the members of the Panchayat including Dewaram, Multaniram, Ladhuram and Tandan Ram, the father of Dharmoo, to a place in the jungle and pointed out the spot where he had killed Dharmoo. The party found a few bones of a boy lying in a bush and a piece of cloth which was of the same design as the shirt of Dharmoo. Tandan Ram thereafter took Ladhuram and Dewaram with him and went to Atmaram at Gandi and having also taken him with them they proceeded to the Police Station at Govindgarh and lodged the first information report, on the 29th of August 1950 at about 11 A. M. The Sub-Inspector of Police was away and Saligram Head Constable noted down the first information report and went out with Tandan Ram and the party to the scene of occurrence and he took into his possession the bones, a piece of skin and a piece of cloth purporting to be that of the shirt of Dharmoo. By this time the Sub-Inspector of Police also came to the Police Station and having come to know about this case he immediately went to the spot and took the charge of the investigation of this case from Saligram. The gold ear-rings were taken by the Sub-Inspector from Tandan Ram and a silver bangle was also produced before him by Mangalram. After investigation the accused was challaned for the murder of Dharmoo and after enquiry the case was committed to the court of the Sessions Judge at Alwar. The accused has retracted his statement which he is alleged to have made before the Panchayat of the village and he has pleaded that he did not murder Dharmoo and he has said that he did not make any confession before the village Panchayat nor did he give the gold ear-rings to Atmaram or sell the silver kara to Mangalram. He has also denied that he pointed out the place of occurrence to the village Panchaya. The accused did not lead any evidence in his defence. There is no direct evidence against the accused in this case. The learned Sessions Judge has held the accused guilty on the basis of the following circumstances : - (1) That the accused was seen in the company of Dharmoo near the scene of occurrence by Rupram P. W. 9, a Sindhi displaced person of Barwara, at about noon on the 27th of August 1950. (2) That the accused made an extra-judicial confession in the presence of Tandanram, the father of Dharmoo and Multaniram, Dewa-ram, and Ladhuram in the evening on the 28th of August 1950 and he pointed out the spot where a few bones, a piece of skin and a piece of cloth were found. (3) That the accused tried to sell gold ear-rings to Dewanchand in Govindgarh at about 4 or 5. P. M. on the 27th of August 1950 when Atmaram happened to go there and he took the gold ear-rings from the accused thinking that he had stolen them away from his house which have been identified by Tandanram to be of Dharmoo which he was wearing at the time he left the house on the last occasion. The accused also told Atmaram that he had sold a silver kara to a goldsmith in Govindgarh and he showed Atmaram the house of Dewanchand from whom the silver kara was recovered by the police and which also has been found to be that of Dharmoo. It may be observed that the first information report which was made by Tandanram in the presence of Atmaram, Dewaram and Ladhuram on the 29th of August 1950 at about 11 A. M. simply mentions that Dharmoo, aged 8 years, was missing for two days and that his dead body had been found in a field in the boundary of the village Barwara. The name of the accused Daryai Ram has not been given out in the first information report. Nor had it been stated in it that Daryai Ram had made an extra judicial confession and in consequence of the information given by Daryai Ram the remains of Dharmoo had been recovered and also that Daryai Ram had sold a silver kara of Dharmoo to Mangalram and that he tried to sell the gold ear-rings of Dharmoo to Dewanchand which were taken possession of by Atmaram. The prosecution case is that before the first information report was lodged, the accused had made an extra-judicial confession and had given information to the village Panchayat consisting of Dewarama, Ladhuram and others, which led to the recovery of the bones of a boy of 8 years and a piece of cloth of Dhar-moo's shirt. Further it is also said that Atmaram had taken possession of the gold ear-rings from the accused Daryai Ram at Govindgarh on the 27th of August at about 4 or 5 P. M. when he was trying to sell them to Dewanchand. He had also told Atmaram that ha had sold a silver kara to Mangalram which is the same that was worn by Dharmoo at the time he left his house. If all these facts had been known to Tandanram, Atmaram and others, who had gone to make the first information report, there appears no reason why they should not have mentioned them in the first information report. An explanation has been given by Tandanram that he made a mention of all these facts to Saligram but they were not noted by him in the first information report. Tandanram has admitted in his examination that the first information report was read out by Saligram to him and he also put his thumb mark on the first information report. It is strange that if Tandanram had mentioned all these facts to Saligram and if he had not taken them down Tandanram raised no objection in this behalf when the report was read out to him. Atmaram, Dewaram and Ladhuram were also with Tandanram at the time he made the first information report and they are the witnesses who have given evidence against the accused regarding all these facts but have also kept silent at the time the first information report was made at the police station. The learned Government Advocate has urged that a judicial notice should be taken of the inexperience of Saligram Head Constable and it should be held that Tandanram had told all the facts of the case which were within his knowledge to Saligram but they were not noted down by the latter in the first information report. It may be pointed out that no such judicial notice can be taken about the inexperience of any public servant. The ordinary presumption of law, on the other hand, is that every public officer performs his duty honestly and in accordance with law. Saligram should, therefore, be presumed to have noted down all the facts which were stated before him by Tandanram in the first information report. A first information report is a very valuable document which throws much light on the state of atfairs which were known at the time of its making at least to the persons making it. Consequently, if at the trial a story is given which differs in material particulars from the one given in the first information report it has always been treated with grave suspicion and the accused have been given the benefit of doubt arising from such contradictions and discrepancies vide Akbax vs. Emperor (A. I. R. 1931 Lah. 137), Ratan and another vs. Emperor (A. I. R. 1933 Oudh 148) and Teli Khoja Hussain Sahib vs. Emperor (12 I. C. 217 D. B. Madras ). In the present case the first information report was made by Tandanram and Atmaram, Dewaram and Ladhuram were with him at the police station. There is no mention about the various facts which these witnesses say that they knew at the time when they made the first information report. Tandanram has said that he related all the facts to Saligram who failed to record them in the report but there seems to be no reason tor Saligram not to have recorded the full information given to him about this offence. Saligram has not been produced as a witness nor has any other police officer been examined on this point to prove that the whole story was related to Saligram but he failed to make a record of it. This is certainly a circumstance which goes in favour of the accused and casts a shadow of suspicion on the prosecution case. The extra judicial confession of the accused, which has been proved by the evidence of Dewaram, Ladhuram and others, therefore, is not free from doubt and it is, under these circumstances, not safe to put much reliance upon the statements of these witnesses who were present at the time of the making of the first information report. A very heavy duty was cast on the prosecution in such a case to explain the reason for the different versions given by the prosecution witnesses and the first information report. The evidence of the prosecution witnesses that has come on the record in this behalf is of the persons who were themselves responsible for giving a different version in the first information report. It is also clear from the statement of Tandanram himself that the report was read by Saligram to him and he placed his thumb mark on it. The scribe of the report or some other officer who was present at the time have not been produced to explain away the inconsistency of the first information report with the prosecution story. The next question which arises is whether Dharmoo who is alleged to have been murdered by Daryai Ram is dead. His dead body has not been recovered and from the bones and the piece of skin that have been found, it cannot be said that they are of Dharmoo. The piece of cloth which has been recovered at the place where the alleged bones of Dharmoo were found also cannot go much further in establishing the identity of the bones of Dharmoo. The extra judicial confession made by the accused is also not free from suspicion as has already been discussed above. Under these circumstances, it is unsafe to hold that Dharmoo has been murdered or that he is dead and that he is not alive. The evidence as regards the recovery of the ear-rings and a silver kara is also overshadowed with suspicion and does not stand on a better footing than the evidence as regards the extra judicial confession of the accused. The ornaments have not been taken into custody by the police from the accused or they had not been recovered at his instance. The only evidence consists of the witnesses who were responsible for giving two different versions of the prosecution story - one in the first information report and the other at the time of the trial. Both the versions are irreconcilable with each other. The version of the first information report is that the boy was missing and the dead body was found through a search by Tandan Ram, the father of the boy, whereas the evidence of these witnesses is that the accused confessed about the murder and gave information which led to the recovery of the remains of the boy and also gave the ornaments, which the boy was wearing, to Mangal-ram and Atmaram, before the filing of the first information report. In a murder case where the penalty provided by the law is that of death, it is the duty of the prosecution to leave no room for any doubt or suspicion in establishing the facts on which conviction is sought against the accused. The evidence of Tandan Ram that Dharmoo left for grazing the cattle in the company of the accused Daryai Ram has not been believed by the trial court. The statement of Rupram P. W. 9, that he saw the accused sitting with Dharmoo somewhere near the place where the bones of a boy are alleged to have been subsequently recovered at noon on the 27th of August 1950, by itself cannot raise any inference of murder or robbery against the accused, but this is only a circumstance which can go to support other evidence, if any, against the accused regarding his complicity in the crime. Taking into account all the circumstances that have been proved by the prosecution against the accused, it cannot be concluded with certainty that the accused caused the death of Dharmoo or that he stole the ornaments from his person and disposed off to Dewanchand and Mangalram. The conviction of the accused under secs. 302 and 329 I. P. C. cannot therefore be maintained. This appeal is therefore allowed and the accused Daryai Ram is acquitted of offences under secs. 302 and 392 I. P. C. and the sentence of death and of two years' rigorous imprisonment are set aside. He is in jail and is ordered to be released immediately, if not required in any other case. The reference about confirmation of the sentence of death is rejected. Wanchoo, C. J.- I agree and have nothing to add. . ;