SHARMA, J. - (1.) JALAM Singh appellant was convicted by the Additional Sessions Judge, Jalore, under S. 304, Part 11, of the Indian Penal Code for causing death of Kastura and was sentenced to undergo rigorous imprionment for five years and to pay a fine of Rs. 500/-, and in default of payment of fine to further suffer rigorous imprisonment for six months.
(2.) THE first information report about the death of Kastura was made to the police by the appellant himself on 9-3-74 at 11-30 a. m. It was alleged in the report that the appellant used to keep a watch on the agricultural farm of Annpurna Society, situated at village Rodla. In the evening of 8-3-1974 he, while patrolling the farm, reached a nullah and saw one person taking away a bundle of green crop of grams. THE appellant asked that man as wherefrom he had brought the grams. THE person carrying the bundle did not speak. THEreupon the appellant pulled the bundle which fell on the ground. THE person, in whose possession the bundle was, became enraged and aimed a blow at the head of Jalam Singh appellant with an axe. THE appellant warded off the blow by raising his lathi and then inflicted a lathi blow on that person, as a result of which the latter fell down. That person tried to get-up but the appellant gave him a kick, on account of which he became unconscious. Upon receipt of the report the Station House Officer, police station, Umedpur, asked better particulars from the appellant. Upon being questioned, the appellant disclosed to the Station House Officer that the unknown person, who was found carrying the bundle of gram, had been lying on the bank of the nullah and that the lathi, with which the appellant had struck a blow, was also lying there alongwith the bundle of grams and the axe of that person. THE Station House Officer then rushed to the nullah and found the dead body of Kastura having multiple injuries on different parts thereof. THE dead body and the articles, which were lying by its side, were seized by the police and a criminal case under sections 302 and 201, I. P. C. was registered. THE police made the usual investigation into the case and got postmortem examination performed over the dead body of Kastura. During the course of investigation, the police came to know that the incident did not take place in the manner alleged by the appellant in the first information report and that it occurred in the manner as stated by Nathia Punma Bhera and Ramla. Nathia, who claimed to be an eyewitness to the occurrence, had gone to village Bhuti on the day of Holi festival in the morning. His father Kastura, deceased, told him that he would also go to Bhuti for purchasing goods for the Holi festival and that Nathia should wait for his arrival at Bhuti. Nathia sold away cow-dung cakes at Bhuti and waited for the arrival of his father at the shop of one Birka Mali. After some time Kastura came to village Bhuti. Shortly afterwards, Jalam Singh appellant accompanied by Bhom Singh, Bhanwar Singh, Badara and Keshra Meena came to the shop of Birka Mali in a tractor. Jalam Singh and Kesnra got down from the tractor and saw Kastura standing at the shop of Birka Mali. Keshra Meena pointed out Kastura to Jalam Singh, who came to Kastura and asked the latter to come out of the shop. Kastura did not come out of the shop. Thereupon, Jalam Singh forcibly brought him out of the shop by pulling his hand. As soon as Kastura came out, Jalam Singh and his companions caught hold of him and administered beating to him with lathis and short sticks. Kastura was then thrown on the tractor and forcibly taken away to Rodla. Nathia went after the tractor and, while standing on the road, saw that the appellant and his associates Narpat Singh, Madho Singh, Zabar Singh and Bhanwar Singh were beating his father by giving lathi thrusts to his body at their house. Nathia rushed to several persons for help but none came to his assistance. Eventually he went to the house of Mohanji Seth at village Bhuti and requested him for help. When he was sitting at the house of Mohanji, Zabar Singh, co-accused, came there and told Nathia by showing one 'phool' i. e. ornament belonging to Kastura that Kastura had been in his custody and that he would release him after taking Rs. 1000/ -. Nathia refused to pay the required sum of Rs. 1000/ -. Then Zabar Singh asked Mohanji Seth to make the payment but the latter also refused to pay the same. Zabar Singh resented the refusal and tied the hands of Nathia with a towel and forcibly took him to Rodla on a bicycle. At Rodla, Nathia was taken to a well known of 'rabariyon-wala Bera' where he saw his father Kastura laying in an injured condition with his body tied. Narpat Singh and Zabar Singh, co-accused, asked Nathia to bring money and that if he refused to pay the money, he would be burnt alive. Out of fear Nathia promised them to bring the money. Then Nathia was allowed to go. Nathia then met Baga and Hadia Meena and related the whole story to them. Thereafter he went to village Sugalia and from there to Takhatgarh where he met his grand-uncle Barda. Barda informed Nathia that Kastura had been murdered and that Nathia should go to village Rodla for taking the dead body Nathia and his mother went to village Rodla and from there to their house. Then his uncle Baga brought Nathia to Ahore in a jeep-car. At Ahore he identided the dead body of his father in the hospital. The police relied upon the version given out by Nathia and other eyewitnesses and submitted a charge-sheet against the appellant and nine co-accused in the court of the Munsiff and Judicial Magistrate, First Class, Jalore, under sections 302, 201, 364, 342 and 347, I. P. C. who after perusing the documents filed by the police alongwith the challan, committed the appellant and the other co-accused to the court of the Addl. Sessions Judge, Jalore, for trial. The Add!. Sessions Judge tried the appellants after charge-sheeting him under sections 302, 364 and 342, I. P. C. and the nine co-accused and, upon consideration of the entire evidence, arrived at a conclusion that no case had been made out against all the accused except the appellant u/s 304, Part II, I. P. C. beyond reasonable doubt. Consequently, he acquitted the nine co-accused of the offences with which they charged at the trial. He, however, found Jalam Singh guilty of an offenee of culpable homicide not amounting to murder punishable under Sec. 304, Part II, I. P. C. Aggrieved by his conviction and sentence the appellant has come in appeal to this Court as stated above. I have carefully gone through the entire evidence on the record and have heard the arguments advanced by Mr. V S. Dave for the appellant and Mr. G. A. Khan for the State. It has been contended on behalf of the appellant that the trial Judge committed an error in convicting Jalam Singh for the offence punishable under S. 304, Part II, I. P. C, especially when he came to a finding that the evidence of the eyewitnesses was of no worth. Mr. G. A. Khan appearing on behalf on the State, on the other hand, argued that the evidence led by the prosecution about the occurrence is not wholly unacceptable and that the trial Judge rightly believed it so far as it relates to the complicity of the appellant in the crime. I have given my anxious consideration to the rival contentions. It may be observed at the outset that the prosecution case against the appellant mainly hinges upon the testimonies of Nathia, P. W. 1, Punma P. W. 2 and Bhera, PW. 3 eyewitnesses, who claim to have seen Jalam Singh beating Kastura deceased and forcibly taking him to his well at Rodla on a tractor and from there to the place where his dead body was found lying. The trial Judge commented on the quality of the evidence coming from these eye-witnesses in the following manner: - "i, therefore, hold that in view of these circumstances the statement of Nathiya also cannot be relied and at the same time his statement is not supported by any of the other witnesses, and P. W. 2, P. W. 3, and P. W 4 are his close rela tions whose statements have been just fabricated in order to lend support to the prosecution story which is entirely different than as narrated in Ex. D. 5 and as such all the accused persons except the accused Jalam Singh are to be given benefit of doubt and are to be acquitted. " The evidence of P. W. 3 Punma was commented upon by the learned trial Judge in the following words: - "the crux of the statement of the witness P. W. 2 is that he had seen Kastura going in the company of the accused persons a day before the incident and that he had seen Kastura only when he had got down from the tractor and was going to the Bera alongwith the accused persons. He does not say about the beating in his police statement and therefore, the fact of beating as narrated by him in his present statement cannot be relied. Similarly about the taking of the dead body of Kastura in the tractor, he says in the cross-examination that he had seen only grass in the trolly and did not know as to whether the deceased Kastura was also inside the trolly and that way he also disowns the fact that he had seen Kastura being taken into trolly. Similarly he says that he had seen the dead body of Kastura lying at the Chohata but he did not see any of the accused persons standing there nor he conveyed about this fact to anyone and as such his conduct shows that he has behaved in a most unnatural way. " As for the evidence of PW. 3 Bhera, the trial Judge has observed as follows : - "the very statement of this witness shows that he is a chance witness. His presence ail the more becomes doubtful at the place of incident when he says that he went to purchase oil for the first time and had not been to that shop even after that incident. He did not know the accused persons even at the time of incident nor he knew them at the time of evidence and therefore, in my opinion the statement of this witness cannot be relied nor it appears to be trustworthy and simply because he is the relation of the deceased and therefore, he has been falsely prepared as a witness and produced before the court. I have therefore, no alternative except to reject the testimony of this witness. " There is another eye-witness Ramla P. W. 4, who has said nothing against the appellant. Besides he was not acquainted with all the accused including the appellant except Zabar Singh, who has been acquitted by the trial Judge of all the charges levelled against him at the trial In spite of disbelieving the material parts of the evidence of the three eye-witnesses, the trial Judge accepted it in connection with Jalam Singh appellant merely on the ground that the three eye-witnesses have mentioned his name in their statements. The conclusion drawn by the trial Judge from their evidence may be stated in his own words as follows : - "the name of Jalam Singh of being the principal accused is mentioned by P. W. 1, P. W. 2 and P. W. 3 and he is said to have been seen by all these three witnesses. The recovery of the dead body, lathi and Kulhadi were also made as indicated by Jalam Singh in Ex. P. 5. " It is, therefore, necessary to find out whether the case of the prosecution must be rejected outright against the appellant also or whether the story narrated by three eye witnesses in respect of the crime and the participation of the appellant in it is acceptable in essential particular. In an endeavour to find out whether the appellant was an actual participant in the actual crime, I have carefully scrutinised the evidence of the three eye-witnesses It will not be out of place to mention that apart from Nathia, P. W. 1, Punma, P. W. 2, Bhera P. W. 3 and Ramla PW. 4, the prosecution examined Bhera son of Ukaji, PW. 5, Magiya, P. W. 6 and Genilal, P. W. 7, at the trial to prove the connection of the appellant with the alleged crime, but all these witnesses have turned hostile to the prosecution case and have said nothing against the appellant in their depositions, They were confronted with and contradicted by their previous statements before the police, but nothing has been elicited from their evidence, which may tend to implicate the appellant in this crime. Likewise, P. W. 3 Bhera son of Cholaji admitted in his cross-examination that he did not know Jalam Singh appellant prior to the occurrence, and that he could not identify him at the time when Kastura deceased was dragged out of the shop of Beerka Mali and forcibly taken to Rodla on a tractor. He further admitted that he came to know the name of Jalam Singh, later on, in the village from the mouth of Nathia P. W. 1. in the trial court also he expressed his inability to identify the accused persons including Jalam Singh. In view of these admissions the trial Judge committed a serious error in relying upon his testimony so far as it relates to the complicity of the appellant in the crime. The trial Judge himself adversely commented upon his evidence but, curiously enough, he relied upon it for the purpose of convicting the appellant without any reason or rhyme. The second eye-witness is Punma son of Bhomaji. His evidence is that he saw Kastura deceased tied to a tractor while he was proceeding to his well situated at Rodla. He claimed to have seen Bhomsingh, Bhanwar Singh, Jalam Singh and Badra sitting on the tractor. According to his version, Kastura deceased was taken from the tractor to 'rabariyon-wala' well through a gate by Jalam Singh and Bhom Singh. Thereafter he did not see anything on that day. On the next day he came to know that Kastura was lying dead in the open Chowk of the village. Then he saw that the dead body of Kastura was taken away by Jalam Singh appellant and Bhom Singh on a tractor outside the village. He further claimed to have seen the accused persons including the appellant causing injuries to Kastura with lathis. The evidence of this witness does not carry conviction to a prudent man. He admitted in his cross-examination that he did not disclose the fact of Kastura deceased having been taken from the tractor to 'rabariyonwala' well to anybody in the village even at the time when he had seen the dead body of Kastura lying in the open Chowk of the village. He was further confronted with and contradicted by statement Ex. D. 2, which he gave before the police during the course of investigation and wherein he did not state that he had seen Jalam Singh appellant, Bhanwar Singh, Bhom Singh and Badra beating the deceased with lathis. He could not afford any reasonable explanation why the fact mentioned above was not narrated by him to the police. In his cross-examination he further admitted that he did not see Kastura on the tractor with his body tied to it, although in the examination-in-chief he stated, in clear and definite terms, that Jalam Singh and Bhom Singh, co-accused, were carrying Kastura on a tractor and that Kastura's body Was tied to the tractor. He changed his version in cross-examination by stating that he saw Kastura when he had got down from the tractor. Similarly, he gave a different version in cross-examination by stating that he did not see the dead body of Kastura being carried away by Jalam Singh appellant and Bhom Singh co-accused, although he stated this fact in express words in his examination in-chief. In cross-examination he merely stated that there was a heap of grass on the tractor and that he could not see the dead body of Kastura therein. No reliance can be placed on the evidence of such a witness who has the least compunction in changing his version in the manner he likes best. Now remains the evidence of Nathia son of the deceased. Nathia claimed to have seen his father being dragged out of the shop of Beerka Mali by Jalam Singh appellant and thereafter being beaten and forcibly taken to 'rabarlyonwala' well by the accused persons including the appellant in a tractor with his body tied to it. According to his version, Bheria Meena and Beerka Mali were present at the time when his father was manhandled, beaten and held in wrongful confinement by the appellant and the other co-accused. Curiously enough, Beerka Mali has not been produced by the prosecution for reasons best known to it. Beerka was an independent witness. His evidence could throw sufficient light on the manner in which the occurrence took place and on the participation of the appellant therein. As stated earlier, Bheria Meena, PW. 3, did not support Nathia's statement relating to this part of the occurrence. Bheria could not identify the persons who had beaten Kastura with lathis and who taken him to Rodla on a tractor. In this manner, the evidence of Nathia stands uncorroborated. Apart from the absence of corroboration, Nathia's evidence does not inspire confidence. In his examination in-chief he stated that Jalam Singh appellant and his companions came to the shop of Beerka Mali on a tractor. At that time, his father was purchasing goods from the shop. Jalam Singh accompanied by Kesha Meena got down from the tractor at the shop of Beerka Mali. Thereafter Kesha Meena went inside the shop to see Kastura, deceased. After seeing Kastura, Kesha pointed him out to Jalam Singh, who, immediately approached Kastura and dragged him out of the shop and took him away to 'rabariyonwala' well situated in village Rodla after tying his body to the tractor. Nathia was cross-examined on this point by the defence. He was confronted with his statement Ex. D. 1 before the police wherein he did not state that his father Kastura was pointed out to Jalam Singh by Kesha and that the body of his father was tied to the tractor with the turban by the appellant. He could not afford any explanation for his omission to state these important facts in his statement before the police. Nathia further stated in his deposition that after his father was forcibly taken away by the appellant and his companies to 'rabarlyonwala' well in village Rodla in a tractor, he rushed to Mohan Lal Mahajan for help but the latter refused to give any assistance on account of fear of being dealt with severely by the appellant. Then Nathia hired a cycle from Mohan Lal and reached village Rodla to see what had happened with his father. He saw from the road that the appellant and his companies were beating his father with lathi thrusts and that the hands and feet of his father were tied. Out of fear, he ran away from there and came back to village Bedana where he related the whole incident to Udia Baba and Chatra Meena. This part of the story narrated by Nathia has been found to be false by the trial Judge on the ground that Nathia could not see all that was happening at 'rabarlyonwala' well from the place where he had been standing. The trial Judge inspected the site with a view to make proper evaluation of the evidence of Nathia relating to this part of his story. In the inspection memo prepared by the trial Judge on 4-9-1974, it has been mentioned that the verandah at 'rabarayonwala' well lies at a distance of 100 yards from the road that goes to Tagat-garh and that the level of the road is about 20 or 22 ft. lower than that of the verandah and that a person standing outside the verandah is not visible to a person standing on the road because of the lower level of the road. Apart from this, it was further observed in the inspect ion-note that on both the sides of the gate of the well there was thorny fencing which marred the vision of the person standing on the road and thereby making it difficult for him to see what was happening on the well. Curiously enough, Mohan Lal Mahajan, Udia Baba and Chatra Meena have not been examined by the prosecution at the trial to show that in fact Nathia rushed to them for help after seeing his father being beaten severely by the appellant and his associates at 'rabarionwala'well. Consequently, this part of the story related by Nathia also is not proved by the prosecution against the appellant. Another part of the version given out by Nathia at the trial is that upon his refusal to give a sum of Rs. 1000/-, to Jabar Singh, the latter tied his hands with a towel to his cycle and forcibly carried him to his well at village Rodla where he saw his father lying in an injured condition having multiple injuries and swelling on his mouth and other parts of the body. This part also was disbelieved by the trial Judge on the ground that Nathia did not say in his statement Ex. D. 1 before the police that Jabar Singh was one of the persons who had beaten him and who had demanded Rs. 1000/-, from him in the presence of Mohan Lal Mahajan. This part of the story related by Nathia does not in any way implicate the appellant in the commission of the crime, because it is nowhere stated by Nathia that Jalam Singh appellant also participated in demanding the money or in beating him at 'rabariyonwala' well. Upon careful review of the evidence of referred to above eye-witnesses, I have no hesitation in holding that the case against Jalam Singh appellant is not proved at all beyond reasonable doubt. It may raise a suspicion against the appellant but suspicion is not a valid substitute for proof. It is all the more surprising that the trial Judge acted upon the evidence of the eye-witnesses while convicting the appellant without considering its due weight and without assigning any convincing reasons for its acceptance. From a bare reading of the judgment of the trial Judge, it appears that he relied upon the recoveries of the dead body of Kastura, a lathis and a Kulhari for the purpose of convicting the appellant. It is proved by the statement of Dhan Raj, S. H. O. that upon receiving report of the occurrence from the appellant himself, he rushed to village Rodla and saw the dead body of Kastura lying near Kudla-nullah. According to him, a bundle of green grains, a bamboo lathis and an axe were lying near the dead body. He took the dead body and the articles into his possession. There is no evidence on the record that the bamboo lathi and the axe belonged to the appellant and that they were used by the appellant in the commission of the crime. The Station House Officer did not state in his deposition at the trial that the dead body and the articles were recovered at the instance of the appellant and that the articles were stained with blood. The trial Judge presumably relied upon the written report Ex. P. 5 made by the appellant to the police in arriving at a conclusion that the dead body and the aforesaid articles were recovered by the police upon information given to the S. H. O. by the appellant on being asked better particulars. It is undoubtedly true that after the report was submitted by the appellant to the police, the latter asked better particulars from the former. The appelant upon being questioned disclosed to the Station House Officer that the dead body was lying on the bank of Kudla-nullah and that the lathi, with which he struck, the blow, was lying by its side and that an axe and a bundle of green grams were also lying there. Although the above statement had led to the discovery of the dead-body and the articles, it would not prove the offence because after the discovery the prosecution has still to show that the articles recovered were connected with the crime. It was no doubt a fact discovered and it embraced the place from which the dead body and the articles were recovered and the knowledge of the accused as to this, but mere knowledge that the dead-body and other articles were lying at a particular place is not sufficient to bring guilt home to the appellant beyond any shadow of doubt in the absence of any other incriminating evidence. The statement of the accused that the lathi was one with which he had caused injuries to Kastura is not a statement which led to any discovery within the meaning of section 27 of the Evidence Act. The lathi was not found to be blood-stained. It was the duty of the prosecution to show that this lathi recovered was in any manner connected with the crime. Consequently, I am unable to hold that the appellant could be legally convicted upon mere recovery of the dead body and the articles at his instance or in consequence of his information. Another piece of evidence relied upon by the trial Judge is the first information report of the incident lodged by the appellant with the police. This report is Ex. P. 5 on the record. The crux of the report is that the appellant, while guarding the farm of Annpurna Society, reached Kudla-nullah and saw the deceased carrying away a bundle of green grams. He made necessary enquiries from the deceased, who kept quiet and did not give any reply. The appellant, thereupon, caused the bundle of the green grams to be dropped from the head of the deceased, who in a fit of anger aimed a blow on the head of the appellant with an axe. The appellant warded off the blow with the help of his lathi and immediately struck a blow on the body of the deceased, as a result of which the latter fell down. The deceased made an attempt to get-up but the appellant gave a kick to him. As a consequence of the kick, the deceased became unconscious. The question that arises for determination is whether and how far the information given by the appellant in his report Ex P. 5 is admissible against him. In A. Nagesia vs. Bihar State (l ). their Lordships of the Supreme Court determined the question of admissibility of such reports made by the accused himself to the police and held that the reason of the provisions contained in sec. 25 of the Evidence Act, the confessional statement made by the accused in their first information report is inadmissible in evidence and cannot be used against the accused. The following observations of their Lordships are quoted below: - " (18 ). If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by sec. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of sec. 25 is lifted by, sec. 27. " Hence the only fact that is admissible against the accused is that he gave the first information report to the police. This fact ran be treated as evidence of conduct under sec. 8 of the Evidence Act. The trial Judge committed an error in using the contents of the first information report made by the appellant to the police as his admission relating to the commission of the crime. It was not permissible for the trial Judge to exclude the non-confessional part of the first information report and to use the confessional part thereof only against the appellant. The entire report must have been considered as a whole and not in part by the trial Judge, if he wanted to use it against the appellant as an admission under sec. 21 of the Evidence Act. In the first information report the accused gave his own story relating to occurrence. According him, he was attacked in the first instance by the deceased with an axe. He warded off the blow aimed at him by the deceased with the help of his lathi and then immediately in his self defence struck a blow with it on the body of the deceased in order to avoid the danger of being hit again by the deceased with axe. As a result of the blow, the deceased fell down and tried to get up to resume the fight Thereupon the appellant gave a. kick to him. In this manner, the first information report, first described the event which led to the main incident and then dealt with the manner in which injuries were caused to the deceased. These parts were inextricably mixed up and they could not be separated. If the first information report made by the appellant is considered as a whole, it goes a long way to exonerate him from criminal liability, because all that he did was done, according to him, in the exercise of the right of private defence of person. I am, therefore, of the view that the statements made by the a cused in the first information report to the police could not saddle criminal liability on the appellant, especially when there was no other reliable evidence on the record to connect him with the crime. The trial Judge failed to consider the nature of the statement made by the appellant in his first information report and committed grave error in placing reliance upon the confessional part thereof alone against the appellant as an admission. Over and above, all there is a clear admission of Nathia that he never had an opportunity of meeting Jalam Singh appellant prior to the occurrence. Shri Dhan Raj, S. H. O. also stated in his examination-in-chief at the trial that after their arrest, the accused persons were put up for identification in a test identification parade but the witnesses were unable to identify them. The prosecution ought to have produced the memo or memos of identification-parade. It has suppressed this fact by withholding the important documents. Hence it is highly doubtful whether the appellant and his companions were the persons who participated in the commission of the crime.
(3.) THE result of the above discussion is that no case under Sec. 304, Part II, I. P. C. , is made out against the appellant beyond reasonable doubt. THE appeal is therefore, accepted, his conviction and the sentence under S. 304, Part II, I. P. C. is set aside and he is acquitted of the charge. THE appellant is in jail. He shall be released forthwith, if not required in connection with some other case. .;