- (1.) THIS is an appeal by Gopi, Rampat, Chandru, Amarchand and Budhram who have been convicted under secs. 302/149 of the Indian Penal Code by the Additional Sessions Judge at Churu.
(2.) THE prosecution story is briefly this: Girdhari deceased had been living in village Bhangarh for the last two years at the house of Mst. Sona. Her husband Mukhram died sometime in November,1949. THEreafter she adopted Girdhari's son Ramsingh as she had been told by her husband to do so. Gopi and Rampat appellants who are brothers were collaterals of Mukhram. THEy did not like this adoption of Ramsingh. Consequently, they filed a suit in March, 1950 against Mst. Sona challenging the adoption made by her. THEreafter, it is said that there were applications and counter-applications by the two parties against one another under sec. 107 of the Code of Criminal Procedure. Mst. Sona and Girdhari were on one side in this matter while the appellants and some others including one Sheo-karan were on the other side. THEre was thus undoubtedly bad blood between the parties from before the present incident. It is said that on the 14th of July, 1950, Girdhari had gone to Nohar and was returning from there in the afternoon. He got down at railway station Shidhmukh and from there proceeded on foot to Bhangarh. Hathi P. W. 11 and one Moman had met him at Shidhmukh. Moman and Girdhari proceeded together followed by Hathi who joined them in village Rajpuria at the house of Jaimal, where these two had stopped for a short time. From there,the three of them started together. After they had gone a mile, they came to the cross-roads and Moman separated from them there as he had to go to Sadhpura. Thereafter, Girdhari and Hathi continued on their way on foot to Bhangarh. After they had gone 300 or 400 poundas, Gopi was seen coming by them. Girdhari deceased then turned back and left Hathi saying that he would go to Sadhpura. He obviously wanted to avoid Gopi. It is said Gopi then followed Girdhari and Chandru appellant also came up and the two of them caught him near about Madu's field. Of these two, Gopi was armed with a gandasi while Chandru had no weapon with him. After these two persons had caught Girdhari, the other three appellants viz. , Amarchand, Ram-pat and Budhram arrived on the scene. Amarchand had a kasiya while the other two had lathies and all four besides Chandru began to beat Girdhari. Hathi saw this from a distance of 200 or 300 poundas. It is also said that Madu was in his field at the time and saw the incident. Bishna happened to pass that way searching for his buffalow and also saw the attack on Girdhari. Bishna, however, went to his own village Sadhpura While Madu and Hathi went to Bhangarh. Hathi proceeded on foot while Madu went on a camel. These two gave information to Mst. Sona and she first came out in search of Girdhari alone. She could not find Girdhari and returned to her village and this time she was accompanied by Hathi and two others namely, Gogan and Jethu. There was a renewed search of Girdhari in the course of which these persons even went to village Sadhpura and eventually Girdhari's dead body was found lying in the field of Madu. These people remained there guarding the body till morning. Next morning, the; report of the incident was made at 6-30 A. M. at outpost Shidhmukh. It may be mentioned that in the first report all the four appellants except Chandru were mentioned. Chandru's name was absent from the report and in his place, we find the name of Sheokaran; but after investigation Sheokaran was not prosecuted and the other four and Chandru were run in. All the accused have pleaded not guilty, and say that they have been implicated on account of enmity. They have produced no evidence in defence. The main prosecution witnesses in this case are Hathi, Bishna and Madu. There is also the statement of Mst. Sona as to what happened after she had been informed about Girdhari. She has also proved that there was bad blood between the appellants and Girdhari from some time before the incident. The appellants also say that they have been implicated on account of enmity and, it may, therefore, be taken as established in this case that there was bad blood between the deceased and the appellants and criminal and civil litigation had been going on between them. Enmity is however, a double-edged weapon and it was as such possible for the accused to attack the deceased as it was possible for Mst. Sona to mention the names of the accused when it was not possible to find out who had actually made this attack on the deceased in the jungle at about sun-set. We have, therefore, to examine the evidence of the three eye-witnesses with caution in this case. A remarkable feature of the evi-dence is that two of the eye-witnesses namely Hathi and Madu have gone back to a certain extent to their statements in the committing Magistrate's court. In that court they had said that they separated and said they had recognised the assailants and named them. In the Sessions court,madu only said that he had seen some men going towards his field. As soon as he saw those men coming he ran away out of fright, but did not see any beating of anybody. Hathi's statement was that he had been with the deceased up to the cross-roads and then the deceased said that he was going away to Sadhpura. Hathi went on towards his village. Shortly after he saw three men running from east to north in which direction Girdhari had gone. He could, not, however, recognise those men and did not see anything in their hands as it was getting near sun-set. Later he heard some shouts from Madu's field and saw four or five persons there quarrelling with Girdhari. He could not, however, recognise these four or five persons because of the distance and failing light. So he went immediately to his village but came to know that rumour had already reached the village that Girdhari had been killed. About 8 or 9 P. M. he went with Guggan, Jethu and Mst. Sona to search for Girdhari. During that search they first went to Madu's field but could not find Girdhari there. Then they went to Sadhpura but did not find Girdhari even there. They then brought a lantern from Sadhpura and went again to Madu's field and found the dead body of Girdhari lying there. The statements of these witnesses in the committing Magistrate's court have also been brought on the record of the sessions trial under sec. 288 Cr. P. C. We are of opinion that the evidence of none of the three witnesses is reliable. We may consider Bishna's statement first because he has not gone back on what he has said in the committing Magistrate's court. He is a chance witness and what is more, his brother is married to the daughter of Girdhari deceased. Obviously he is also an interested witness. His name does not appear in the first report. His conduct after he saw his brother's father-in-law being beaten is most unnatural. He says that Girdhari asked him for help; but he was so frightened that he did not even attempt to help Girdhari. Further, he raised no alarm to attract other persons who might be present in the neighbourhood. He ran away to his village and says that he informed members of his family about the attack but no attempt was made to bring a rescue party from his village which was only two miles away. He was on a camel and it should not have been difficult to bring help from the village to his brother's father-in-law. It appears further that he saw Mst. Sona, Gogan and Jethu when they came to his village that night; but he neither went with them to Madu's field to show them where Girdhari had been struck down nor did he inform them that he had seen the attack on Girdhari. It may be mentioned that the outpost at Shidhmukh is about two miles from the place where Girdhari is said to have been attacked. Even though this witness was on camel back, he did not go to the outpost and get help from the police for his brother's father-in-law. On a careful consideration of the evidence on record, we find that he is not reliable and has come to give his evidence for his brother's father-in-law as there was no other evidence. We next come to the statement of Madu. We have already said that he has gone back on the statement which he made in the committing Magistrate's court. The Sessions Judge has accepted the statement made by this witness in the committing Magistrate's court as correct but the witness said in Sessions court that that statement was false and further said that he did not recognise anyone. If it is true that this man saw the incident and went on camel back and informed Mst. Sona of the incident, we should have found the mention of his name atleast in the first report. He would be the first person to reach Bhangarh and give information of the incident to Mst. Sona as he was on camel back and could have travelled faster than Hathi as he was on foot. Mst. Sona's statement also is that it was Madu who gave her the names of the assailants and not Hathi; but it is strange that though Hathi's name is mentioned in the first report, the name of Madu who was the main informant is not there. Further if Madu had really seen the incident and had gone to inform Mst. Sona about it, we do not understand why Mst. Sona should have wandered about and not straightaway gone over to Madu's field to find out Girdhari. She says in the first report that on being informed by Hathi, she went in search of Girdhari and shouted out the name of Girdhari in the jungle but got no reply. This would suggest that the information which she had received did not disclose that Girdhari had been attacked in Madu's field. Further, Madu also raised no alarm and seems to have been so frightened that he immediately ran to Bhangarh according to what he stated in the committing Magistrate's court. We are not prepared under these circumstances to place any reliance on the statement of Madu which he made in the committing Magistrate's court particularly when he has gone back on that statement. The last witness is Hathi. It does seem to us that Hathi was with Girdhari when they left Rajpuria; but it appears that after they had passed the cross-roads, Girdhari decided to go to Sadhpura either because he had seen Gopi (what was stated by Hathi in the committing Magistrate's court) or because of some other reason which he did not disclose to Hathi (as stated by him in the Sessions court ). But it appears to us that Hathi saw nothing thereafter and continued on his way to his village and mentioned to Mst. Sona about Girdhari returning back to Sadhpura on seeing Gopi. In the committing Magistrate's court, he has said that he had seen the attack in Madu's field; but if that was so, there was no reason why he did not tell Mst. Sona that Girdhari had been attacked in that field. The statement of Mst. Sona in this connection is that Hathi did not tell her about Madu's field. Hathi's statement in the committing court was that he only mentioned 'bootiwala Jori' to Mst. Sona. It is obvious, therefore, that Hathi could not have seen the actual attack though he might have suspected that Girdhari was fearing an attack by Gopi and his friends. Hathi's present statement that he could not recognise anybody is supported by the statement of Mst. Sona herself who said that Hathi had not given him the names of any of the assailants and that he simply told her that five or six men had beaten Girdhari. It is quite possible that Harhi might have seen from a distance that Girdhari was being attacked by a few people, but his statement in the Sessions court to the effect that he did not recognise those men may also be true. In any case, in view of what he stated in the Sessions court and the other circumstances which we have mentioned above, we feel it difficult to rely on his statement in the court of the committing Magistrate. There is no other evidence to prove that the appellants or any of them had attacked Girdhari. It may be mentioned that Chania, P. W. 8, says that Girdhari was a quarrel-some fellow and had enemies in Santhpura and Deherani villages in the neighbourhood, and that he was also a habitual litigant and a drunkard. It is possible that such a man might have been attacked by any of his enemies. In any case, we feel that the evidence in this case is quite insufficient to prove the case against the appellants. We may also mention that on one point Mst. Sona and Hathi, curiously enough, contradict each other. They had to explain how the name of Sheokaran found place in the report. Mst. Sona's explanation is that she suppressed the name of Chandru and gave the name of Sheokaran at the instance of Hathi even though Madu had given the name of Chandru to her and not of Sheokaran. Hathi's explanation on the other hand, in the committing Magistrate's court was that he had given certain names to Mst. Sona and that it was she who gave the name of Sheokaran and left out the name of Chandru. This also shows how the statements of these witnesses are unreliable. Before we leave this case, we should like to poind out for the benefit of the lower court that before the accused were charged under sec. 302 read with sec. 149, there should have been a charge under sec. 147 against all of them. We, therefore, allow the appeal, set aside the order of the court below, and acquit the appellants. They are in jail and shall be released at once if not required in any other connection. . ;