S.K. PHAUJDAR, J.

(1) THE present appeal at the instance of the aforesaid two appellants, who are father and son amongst themselves, is directed against the judgment of conviction and sentence by the I Additional Sessions Judge, Bulandshahr dated 10. 1. 1978 in S. T. No. 192 of 1977, whereby the learned judge found the appellants guilty under sections 302/149, 147 and 364 IPC and sentences them to life imprisonment, to R. I. for one year and to R. I. for five years for the offences respectively. It is stated that the appellants were released on bail in this appeal and appellant Mahabir has died during the pendency of the appeal.

(2) IN the trial court three persons stood trial for the aforesaid offences, the third accused Amar Singh was acquitted by the trial court. There was yet another accused Bhopal who is said to have been tendered pardon and who turned an approval and was examined as a witness.

(3) ACCORDING to the prosecution story, there were litigations between the deceased Mahendra Singh and the present two appellants, Mahabir and Rajkumar and on 9. 2. 1977, it is stated, Mahender Singh took a bus for going to Aligarh in connection with a litigation. The bus was waylaid, Mahender Singh was dragged out by Mahabir, Rajkumar and others and was taken away on a truck. He was subsequently murdered and his dead body was left on a road. The FIR was lodged by a co-passenger, Mithan Singh, at the police station Chhatari at about 10. 30 a. m. stating that on that day he was going to Aligarh from Pahasu by bus No. UPB 1990 and Mahender Singh son of Jagat Singh, resident of Aterna, was also moving in the same bus. When the bus crossed a kiln after crossing Pahasu, a truck, no. RSM 7626, came from behind and overtook the bus and stopped in front of the bus and made the bus halt, seven or eight persons came down from the truck and caught hold of Mahender in the bus and assaulted him, took him out and took him away on the truck for the purpose of killing him. The informant could identify Mahabir Singh and his son Raj Kumar amongst the miscreants and he claimed to be able to identify the others if seen again. It was stated that Mahendra Singh was going to Aligarh in connection with a litigation. The bus tried to chase the truck, but it sped away. The F. I. R. indicated that Mahender Singh had a bag with him containing the litigation decoments and it was lying in the hands of the informant Mithan Singh at the time of lodging the F. I. R. The F. I. R. was scribed by one Naresij Chand Bhardwaj of Chhatari.

(4) UPON this information, as the prosecution case reveals, a report was sent from police station Chhatari to police station Pahasu as the place of occurrence fell within the latter police station. A police officer from police station Chhatarialso went out in search of the abducted Mahender Singh. This police officer, Ravindra Singh, found the dead-body and made a report to police station Chhatari and this report was conveyed to the police Pahasu and though initially a case under section 364 IPC was started, later on investigation under section 302 IPC was also taken up. Postmortem examination of the dead-body was done and the doctor found two gun-shot antemortem injuries as also two lacerated wounds and, in the opinion of the doctor, death was caused due to shock and haemorrhage arising out of these antemortem injuries. The Post-mortem examination was held on 10. 2. 1977 at 4 p. m. and, in the opinion of the doctor, the probable time ALLAHABAD HIGH COURT Page 3 of 11 of death was about one-half day prior to the post-mortem examination.

(5) DURING investigation not only the present two appellants but the driver and conductor of the truck were arrested. The conductor, Bhopal, made a confessional statement under section 164 Cr. P. C. before a Magistrate and, as has already been stated, he was examined during trial as a witness as he tuned an approver. The record indicates that a charge was initially framed against him as well, but subsequently by an order dated 25. 8. 1977 the charge was amended and the name of Bhopal was deleted from the charge.

(6) DURING the trial, the prosecution had examined Mithan Singh, the first informant (P. W. 1), Komal Prasad, the conductor of the bus (PW 2), Munna, driver of the bus (PW 3), Bhopal conductor of the concerned truck who turned approver (PW 4), Jagat Singh, Father of the deceased (PW 6), Preetam Singh, a villager of Mumrejpur where the dead body was found (PW 7) to prove some part of the other of the occurrence. The prosecution also examined Ram Pal Singh, a clerk at Chhatari P. S. (PW 8) who had recorded the FIR, Banwari Lal Gautam, Station Officer, P. S. Chhatari (P. W. 10). Sheeshapal Singh, the then Head Constable at P. S. Pahasu (P. W. 11), Gyan Prakash, the then sub-Inspector of P. S. Pahasu (P. W. 12) and K. P. Singh of P. S. Pahasu (P. W. 13). In addition to these witnesses, the prosecution also examined Jagdish Singh, Judicialmagistrate (1 Class), Bulandshahr (P. W. 9) who had recorded the confessional statement of Bhopal and Dr. Aqil Ahmad, who had held the post-mortem examination on the dead-body of Mahender Singh. Prosecution also placed on record affidavits of Head Constable Behari Singh Tyagi on a formal matter and of Constable Ghanaram also on a formal point. The affidavit of Sardar Singh, Constable of P. S. Chhatari was also put forward, again on a formal matter.

(7) IT was contended during hearing of the appeal by the learned counsel for the appellants that the whole prosecution story was a concoction and circumstances were there to show that Mahender was killed by some unknown persons but a story of kidnapping and murder by the present appellant has been cooked up subsequently. The learned counsel for the appellants submitted that the prosecution story was full of improbabilities and discrepancies touching the very credibility of the case and no offence was made out against the appellants. It was submitted that there is nothing on record to indicate how and when Bhopal was tendered pardon, if at all the provisions of law in that connection were duly observed he pointed to the striking differences between the observations during post-mortem examination by the doctor and those by the Investigating Officers and witnesses during inquest regarding the nature of injuries. The first responsible officer to reach near the dead-body was the Sub-Inspector Ravindra Singh of P. S. Chhatari and it has come in evidence, according to the learned counsel, that he had posted a constable there to guard the dead-body. For reasons unknown, neither Ravindra Singh nor this constable had been examined. The FIR indicates that Mahender was carrying a bag concerning his litigation and bag was with Mitthan when he lodged the FIR. The prosecution is silent as to what happened to this bag. This according to the learned counsel, was not just an omission or error as this bag allegedly contained the papers of litigations which attributed the motive to the appellants to commit the murder. The evidence disclosed, the learned counsel went on to say, that Mahenders son and Raj Kumar had married two daughters of one gentlemen and when that gentlemen died, there was a tussle over his properties between the daughters i. e. between the sons-inlaw. In this light, the litigation papers or the oral evidence of existing litigation were necessary as the cause of litigation was an alleged indescent assault on one of the sisters-in-law of Mahenderts son by Mahabir. The learned counsel submitted that the conduct of the witnesses were not above board and they were not at all natural. He concluded that the prosecution story could not at all be relied upon.

(8) IN reply thereto, the learned counsel for the State came up with a routine reply that human perception and memory vary from person to person and if broad features of the case were brought forward, then the witness may not be disbelieved for minor contradictions here and there. He contended that it is a case of prompt FIR and non-examination of one or the other witness may not affect the credibility of the prosecution story, if the prosecution case was unfolded properly by the other witnesses.

(9) KEEPING in view the above submissions, we propose to analyse the evidence as also the trial ALLAHABAD HIGH COURT Page 4 of 11 court judgment to see if the order of conviction and sentence could be maintained or if it needs any interference.

(10) FROM the trend of the prosecution story, if appears that it has clearly two distinct parts, one of the alleged abduction and the other of alleged murder, while the story of abduction has been proposed to be proved by the father of the deceased and certain inmates of the bus including its driver and conductor as also the approver the story of murder rests solely on the testimony of the approver read with other circumstances. Accordingly, we shall first take up the second aspect i. e. the story of murder.

(11) ACCORDING to the FIR, the persons who stopped the bus and dragged out Mahender included Mahabir and Raj Kumar and they had taken away Mahender on truck No. RMS 7626. What happened in the truck, has been told by Bhopal. He states that he was the conductor in the truck and Amar Singh was its driver. This Amar Singh had acquaintance with Mahabir. The day prior to the incident Amar Singh had told him that they were to go to some place and on the next day at 5 a. m. Mahabir and another came and took them to different places on the truck. In such adventure they had gone to village Parha at the dictation of Mahabir. Raj Kumar and others joined him. They occupied the rear portion of the truck and Mahabir directed the truck to proceed to Pahasu. Thereafter, at his dictation, they drove towards Khurja. On the road a boy informed Mahabir about the man having gone on a tractor towards Pahasu. Then Mahabir directed Amar Singh to Pahasu and lay in wait there. At about 8. 30 a. m. the truck proceeded towards Chhatari following a bus. Amar Singh blew horn, the bus allowed passage to the truck and the truck was stopped in front of bus after overtaking it. Mahabir and others brought down a man from the bus and made him sit on the back portion of the iruck. The bus proceeded and the truck also followed the same route towards Chhatari. This witness and driver Amar Singh were occupying the cabin. He heard some sound as if some body had hit the truck with a brick-bat. Amar Singh slowed down the pace of the truck and looked back through the window and commented that the man who was picked up had been done to death. The truck crossed the check-post at Chhatari and drove towards Shikarpur. It was stopped near a kiln and the man who was killed was dropped on the road. Thereafter Mahabir and his associates left the truck after making payment for the fuel. This witness and Amar Singh threw away their guilt in the canal. The truck had, prior to this operation, carried coal and the whole rear body was full of coal dust. His cross-examination indicates that he was arrested 20 days after the incident. He was confronted with a paper (10-Kha) through which he made a statement before the court that this statement under section 164 Cr. P. C. was not voluntary and was made under threat and inducement from police. He proposed to say in the court that this application was written at the dictation of Mahabir and Raj Kumar. In fact, they given him a draft. He admits in his cross-examination that the paper 10-kha (proved as Exh. kha-l) was not the paper written by him at the dictation of Mahabir, thereby he admits that Ext. Kha-1 was not written under any threat from Mahabir. The jailor read over and explained this Kha-l to him and only thereupon hehad put his thumb-impression on it. He was confronted with his 164 Cr. P. C. statement and it appears that he made improvements in his statement concerning material details that it was he who stopped the bus or that the truck had blown horn or that the truck was stopped near a kiln and the dead-body was dropped. He did not tell the Magistrate that he heard some sound as if the truck was hit by brick-bat or that he asked Amar Singh to look for the reason of such sound or that Amar Singh looked through the window and found the man done to death. He did not tell the Magistrate that at Chhatari check-post the accused, Mahabir had declared that the truck was empty and they were allowed to move. He did not tell the magistrate that Mahabir stopped the truck and dropped the dead-body. He did not tell him about payment by Mahabir to them. He did not tell him that Amar Singh and he came to Bulandshahr through Shikarpur and then to Khurja. He spoke of throwing of the quilt in the canal and the spot was shown to the police but no recovery was made of any quilt or any remnant thereof. He claims to be the conductor in the truck for a few months from prior to the alleged occurrence but his cross-examination indicates that he did not know that truck no. RMS 7626 was owned by Prem Narain although he knew Prem Narain. He did not know who was the registered owner of the truck.

(12) THERE are certain inherent improbabilities, as also definite improvement, in the statement of this approver. Throughout his statement, he exculpated himself. If he had been the conductor ALLAHABAD HIGH COURT Page 5 of 11 there was no reason why he would not know the name of his employer, a conductor (even a khalasi) may not work in a truck without the owners approval. Had he been really an innocent spectator of the whole incident, there was no reason why he should have hesitated in disclosing the matter to the police or any authority during three weeks between the incident and the date of his arrest. There is nothing on record to show that Muhabir and his associates had threatened him in any manner.

(13) WE may also compare his evidence with the other circumstances concerning death. The dead- body of Mahendra was said to have been found on the middle of the road with one khess under his head. According to the prosecution story of inquest, the injuries of Mahender Singh was caused by a knife as there were cut injuries on the throat. The defence counsel submitted that at the outset this witness in his statement under section 165 Cr. P. C. had spoken of pharsa, gandasa and lathi having been carried by Mahabir and his associates, but when in post-mortem report the injuries were found to have been caused by gunshot, this witness changed his initial version and introduced the story that he heard some thud sound as if the body of the truck was hit by brickbat. He also introduced a theory of throwing the quilt being blood-stained as that would only explain the absence of any coal-dust on the dead body. This quilt was, however, not recovered. One of the conditions of tendering of pardon to an accomplice is that he would make full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether principle or abettor in the commission of the offence, and the facts and circumstances discussed above clearly indicate that this witness P. W. 4 had not made full and true disclosure of the circumstance within his knowledge as he has deviated from his first ever statement made in the court and improved upon it to suit the prosecution story. Moreover, there is no acceptable explanation of discarding his application (Ext. Kha-l) by which he had stated that he made the 164 Cr. P. C. statement under threat and inducement. It is true that under section 133 Indian Evidence Act an accomplice is a competent witness against an accused person and a conviction may be based even on his uncorroborated testimony, but corroboration is never a rule of law, it is al ways a rule of prudence and on accomplice who turned approver and whose evidence is improved from stage to stage requires a thorough scrutiny and section 114, illustration (b), of the Evidence Act stanlis a guard against acceptance of accomplice evidence unless it is corroborated in material particulars. The material particulars in the case of the present approver would have come from the owner of the truck to say that, yes, Bhopal, was the conductor in the truck at the relevant time. It could have come from a consistent story given by the accomplice at all stages of his deposition. We would have got this corroboration if the quilt said to have been bloodstained could have been recovered from the place where it was thrown and if the statement of this witness would have been consistent concerning the use of weapons by the accused persons. In our opinion, it would be unsafe to rely on the uncorroborated testimony of this witness, P. W. 4, for the reasons recorded above and also for another reason that the very first police officers who saw the dead- body (S. I. Ravinder Singh and his constable) and not been examined by the prosecution at all and no explanation has been given for their non-examination. Once this evidence fails the charge under section 302/149 IPC levelled against the appellants must also fail.

(14) WE are, therefore, confronted now with the charge under section 364 IPC i. e. the first part of the prosecution story of the abduction of Mahender Singh from the bus. There is no dispute that the dead-body of Mahender Singh was recovered from a road and there is evidence that he had been done to death. Accordingly, if the theory of abduction be believed, this court would have no hesitation to hold that it was an abduction for the purpose of murder by section 364 IPC.

(15) THE evidence on this point, as already stated, had come from P. Ws. 1, 2, 3 and 4, all directly on the point of abduction, and from P. W. 5 on circumstances leading to the abduction. The evidence of the police officers of Chhatari and Pahasu Police Stations may also be looked into to appreciate the evidence of the above-mentioned witnesses. As discussed while taking up the charge of murder, P. W. 4 approver, does not inspire confidence. His very presence in the truck concerned is, doubtful as he having in the know of kidnapping and murder had chosen not to lodge any report for three weeks. This witness had made himself worthy of no credit because of deliberate improvements from stage to stage on vital points. He has also failed to justify his claim as the conductor of the truck as he had failed to name his employer, the owner of the truck. There ALLAHABAD HIGH COURT Page 6 of 11 is nothi ng to indicate that he had been in conspiracy with Mahabir and Raj Kumar, how could they allow him to be in the truck to witness such a crime and after the incident, let him off with some money for purchasing fuel. On the present point also we may not, therefore, place any reliance on this P. W. 4.

(16) P. W. 1 is Mitthan, According to him, he was moving in the same bus along with Malrender and he lodged the F. I. R. after Mahender was abducted. In his F. I. R. he had named Mahabir and Raj Kumar no doubt, but he was absolutely silent about the weapons carried by these two or their associates. The F. I. R. gives out a story that alter Mahender was abducted, the bus gave a good chase to the truck but could not stop it. But in evidence this witness made out a story that Mahabir had held, a country-made pistol. He further told that the bus was allowed to move first after the incident and the truck came from behind and crossed the bus near Gangagarh and oilly thereafter it was chased. At Chhatari there was a checkpost and all vehicles passing through that checkpost were to stop there for checking. The truck which preceded the bus on that point was not stopped and different explanation are coming on that count. The check-post papers have also been brought-on record through P. W. 5, Ram Pal Singh Ext. 3 in the register maintained at the check - post which indicates that an unladen truck no. RMS 7626 had crossed the check-post at 10. 20 a. m. on 9. 2. 1977 but the evidence of this witness is discrepient from his statement made before the police as to how the truck crossed the check-post, as also from the statement of P. W. 4. Moreover, the register that has been proved has not been authenticated by any inspecting superior officer at any point of time and there is no record of, the bus having crossed the check-post immediately thereafter. The absence of any note concerning the bus in this register is explained by P. W. 5 saying that the bus had paid the tax and receipt was granted and so no entry was made in the register. But no such receipt has been brought on record. Back to P. W. 1, we find that we get two theories concerning the movement of the bus and the truck. The F. I. R. suggests that the truck had preceded the bus immediately after the incident of abduction, but his evidence disclosed that the bus driver managed to proceed ahead and emly thereafter the truck against crossed it. This theory now put forward is too difficult to accept. If the truck was carrying an abducted person, why should it take the route the bus had taken and if the bus was going ahead why should it allow this truck again to overtake it.

(17) THE conduct of P. W. 1, Mithan Singh, is worthy of consideration again. His definite case in the F. I. R. is that Mahender Singh was carrying a bag containing the litigation papers with him and at the time of lodging of the F. I. R. Mithan Singh had this bag with him. The very movement of Mahender Singh in the bus was for the purpose of litigation for which he was to go to Aligarh. The litigation papers would have established that there was really a litigation and Mahender Singh was really required to attend the court on that date. The absence of these papers being brought to the notice of the court raises a strong suspicion about the prosecution case and no reason has been advanced why the bag, if present at the police station with Mithan Singh, was not seized and why at all it was not produced during trial. Moreover, according to the evidence of P. W. 1 Mithan, the passengers in the bus had accosted Mahabir at the time of the alleged abduction as to why they were taking away Mahender and Mahabir had allegedly replied that Mahender had enticed away a girl. This is a story introduced at the evidence stage and there was no whisper of this assertion in the F. I. R. The defence counsel argued that this story has been introduced to explain the inaction on the part of the bus passengers to resist Mahabir and others from abducting Mahender. After all, there was a bus full of passengers and the miscreants were only 6 or 7 and the theory of the miscreants having pistol with them was an innovation at the trial stage only, there being no suggestion of such arm in the F. I. R. Apparently and naturally ,there should have been some resistance on the part of the bus passengers when most of them knew Mahender as Vakil Saheb. Mithan admits in cross-examination that he was booked for Aligarh to bring back his daughter-in- law and he thought of taking the chance to see the exhibition that was going on at Aligarh. It appears from the prosecution case further that Mithan Singh did not proceed to his destination for either purpose, he stayed at Chhatari Police for the whole day. If this assertion is taken to be normal reaction of a co-villager of Mahender, then we would have expected from Mithan that he would send words about the kidnapping (or of subsequent death of Mahender to his father at Pahasu-Mithan does not do so. Had he been really interested to see to the end of the drama when he was so keen to lodge the first information, he should have accompanied the police officers in ALLAHABAD HIGH COURT Page 7 of 11 search of Mahender or atleast he should have gone with the police officer for identification of the dead-body of Mahender when information reached the Chhattari Police Station about recovery of the dead-body. According to the Investigation Officer, this man was not available at the police station. This conduct of Mithan does not fit in with the story as depicted by him, of a responsible co-villager. He admitted in cross-examination that he did not read the number of the truck himself. He could not read, he could only sign his name. He could know the truck number from other passengers only when he was lodging the F. I. R. Several other co-passengers were there and some of them had given the truck number. He could not say who was that person. He made it clear that he himself had not given either the truck number or the bus number to the police during the lodging of the F. I. R. He had know ledge before the lodging of the F. I. R. about the route taken by the truck after crossing the bus, but that had not been stated in the F. I. R. nor could he give an explanation as to why it was not mentioned in the F. I. R. he makes a very relevant admission that before joining the legal profession, the deceased Mahender Singh was a teacher in a school and he was sacked on allegations of moral turpitude.

(18) WE may now proceed to examine the other witness on the point of the alleged abduction. P. W. 2 Komal Prasad was the conductor of the bus from which Mahender Singh was allegedly abducted. According to him, truck No. 7626 overtook the bus and stopped in front of it and forced the bus to halt. Seven or eight persons entered the bus through the front door and assaulted Vakil Saheb (Mahender Singh) and dragged him away. 9ne of them had a country made pistol with him. That man was Mahabir. He knew his name from the driver of the bus. This man, however, identified Raj Kumar as Mahabir in the dock. This man was declared hostile and was crossed-examined by the prosecution and he had been confronted with his previous statement wherein he had made a statement to the effect that Mahabir and his son Raj Kumar and 5 or 6 persons had come to take away Mahender. This suggests that this man knew both Mahabir and Raj Kumar and the wrong identification in the court casts a doubt on his veracity. In the alternative, it could be said that he knew neither Mahabir nor Raj Kumar and he was only a got-up witness. He admitted to have told the Investigating Officer the name of the Mahabir as he heard that name from his driver. There was no test identification parade arranged for him to identify the culprits. He did not know Vakil Sahebt (deceased) from before. He was not shown the dead-body of Mahender that was recovered subsequently. This identification was necessary to establish that the man kidnapped was the man murdered. He did not tell the police till investigation that miscreants had assaulted the Vakil Saheb. Nor did he tell the Investigating Officer that he was dumped in the rear portion of the truck. He had stopped at the Chhatari check post for payment of tax. He knew that the truck had gone that Way only but there was nothing to indicate that he had given antinformation at the check post, concerning the incident or concerning the offending truck. He was examined by the police on the third day of the incident. He could not say who was the person sitting near Vakil Saheb on that day, the next witness on this poiht is Munna, P. W. 3, the Driver of the bus. He also gave almost a similar story, as has been given by the prosecution witnesses concerning the abduction. He had named Mahabir and Raj Kumar and identified both of them in the court as the two amongst the miscreants. He also stated that he and others had confronted as to why Vakil Saheb was being treated in such a manner and he was told by Mahabir that he had enticed a girl. In the court he had identified Mithan (P. W. 1) as the man sitting beside the Vakil Saheb in the bus. This identification in the court is of little value as there was no test identifiction for this driver to identify the passengers in the bus. This witness further stated that when the truck crossed the bus in high speed the passengers asked him to chase the truck and he had told Mithan that the driver of the truck was Amar Singh. This claim palpadly is not sustainable as the F. I. R. does not name the driver of the truck. He drove straight to Chhatari Police Station and at the police station only he was examined by the Sub-Inspector. If the driver was available for examination at the police station, there is no reason why the conductor who must have been with the bus should have been examined after three days. The theory that the truck had crossed the bus near Gangagarh is again falsified from the statement made in the cross-examination by this witness. He admitted that the bus was stopped near Gangagarh at one side of the road and the road was narrow. At this place there was hardly a space left for a cycle to cross. He makes a further important admission that on that day the owner of the bus, Kailash Chand, had travelled in the bus and had gone upto Aligarh. There is no reason why Kailash Chand had not been examined by police or at the trial. He further admitted that on 9. 2. 1977 at Chhatari itself they could know about the death of Mahender Singh. It ALLAHABAD HIGH COURT Page 8 of 11 was necessary that these persons should have been there to identify the dead-body. Although he was examined at the police station on 9. 2. 1977 itself, his statement was recorded on 11. 2. 1977 and there is no reason for the delay for these days, he claimed to have informed the police that Mahabir and Raj Kumar were residents of Para. No such claim is there in, his statement under section 161 Cr. P. C. He states that the bus had not stopped at Chhatari check post. On this point he directly contradicts his conductor who had claimed, that at Chhatari check post the barrier was down, they paid the toll and then the road was opened for them. This Contradiction in the statements of the driver and the conductor casts a doubt whether the bus had at all travelled on that road at the relevant time.

(19) ON the point of abduction we may look to the evidence of P. W. 6 Jagat Singh also, viz, the father of the deceased Mahender Singh. He did not see the incident no doubt, but he had made certain statements very relevant to the prosecution story. He gave out the history of litigation between Mahender and Mahabir and his evidence indicates that before Mahender had set out for Aligarh on that day, he and Jagat Singh had information that Mahabir was waiting on a truck on the way. The information prompted them not to send the two girls to Aligarh on that day. It is not known why under these circumstances Mahender would proceed to take up journey apprehending that there could be an attack on him as well. The father of the deceased admitted in cross- examination that he had thought that Mahender should not be sent to Aligarh but he did not think that there should be any escort given to Mahender for his safety. His cross-examination further indicates that by 12 noon on that day people came to his village from Pahasu and from them he could know that Mahender had been killed. This again reveals an important aspect of the case. The dead-body, according to the prosecution story, was first seen by police officer Ravindra Singh and an information thereof was lodged at the Chhatari Police Station at about 1 p. m. This does not fit in with the theory that by 12 noon the death report of Mahender would reach his father through Pahasu. This only suggests that the dead-body must have been seen and identified earlier and the theory that it was the dead-body that was recovered first and thereafter the F. I. R. and other materials were made up, as suggested by the defence, gets some foothold.

(20) FOR the reasons discussed above, it is difficult to accept even the story of abduction as propounded by the prosecution. Due to the inherent weakness of the story and due to the subsequent conduct of the witnesses and also due to non-examination of important witnesses and non-production of important evidence, the order of conviction and sentence, cannot be sustained.

(21) THE appellant Mahabir is reported dead and the prosecution does not dispute this position. The appeal so far as he is concerned, accordingly abates. The appeal, so far as the appellant Raj Kumar is concerned, stands allowed. The order of his conviction and sentence is set aside. He is reported to be on bail. He is also discharged from his bail bonds. Sd!- S. K. Phaujdar J As per R. B. Mehrotra, J. (Concurring) -

(22) I am in agreement with the reasonings and conclusions drawn by my learned brother for allowing the appeal and setting aside the order of conviction passed against the appellant Raj Kumar. However, I wish to add some additional reasons for allowing the appeal.

(23) THE only role attributed to Bhopal is that he was a Conductor in the Truck. On the basis of the investigation made in connection with the present case, it was stated that the Driver of the Truck, namely, Amar Singh had a talk with accused, Mahabir for the purposes of committing the offence but Bhopal was not in any way connected with those talks. So merely by a circumstance that Bhopal was a Conductor in the Truck, Bhopal could not have been charged either under section 147 I. P. C. or under section 364 I. P. C. The Investigating Officer has stated that the complicity of the Driver and the Conductor of the Truck in the offence was known after examining the Chungi Moharrir of outpost, Pahasu. The statement of P. W. 5 Ram Pal Singh who has been examined as Chungi Moharrir only says that he knew the driver of the truck, so it is clear that there is no material with the prosecution for implicating Bhopal as an accused. The fact that Bhopal was ALLAHABAD HIGH COURT Page 9 of 11 arrested on 27. 2. 1977 after a lapse of 18 days from the date of occurrence also corroborates this fact that Bhopal was made an accused in the case only for purposes of making him approver and it is on the basis of the statement of Bhopal that the accused has been linked up with the charge of the murder. The trial court has dis-believed the statement of Ram Pal Singh P. W. 5, for the reasons recorded in the judgment of the trial Court. I am in full agreement with the reasoning of the trial court to the extent it has dis-believed the statement of P. W. 5 If the statement of P. W. 5 is disbelieved, the basis on which Bhopal has been linked up with the case, also falls through.

(24) THE only evidence of establishing that the truck passed through Pahasu outpost by taking over the bus is the statement of P. W. 5. Since P. W. 5 has been dis-believed by the trial court, no link evidence is there for proving that the truck in which deceased Mahendra Singh was being carried passed through Pahasu outpost. As stated earlier, I am in full agreement with the reasoning of the trial court for disbelieving Ram Pal Singh, P. W. 5, the necessary corollary would follow that the prosecution has got up a story to implicate the accused with the murder of the deceased on the basis that the body of the deceased was found on a road, which is situated beyond Pahasu outpost. Bhopal in his statement has pointed out the place where the quilt, lathi and ballam were thrown in the canal. Nothing has been recovered from the place pointed out by Bhopal. This also further strengthens the conclusion drawn, that Bhopal is not coming out with the correct statement and he cannot be relied upon for establishing the guilt of the accused. Bhopal has stated in his statement that at the time when the alleged offence was committed and the deceased was carried and killed in the truck, coal dust was lying in the truck. No sign of coal dust has been found on the clothes and Khes etc. recovered from the dead body. This further strengthens the conclusion that Bhopal has not given the truthful account of the prosecution story. It is not safe to convict the appellants for the offence of murder of deceased Mahender Singh on the basis of testimony of Bhopal.

(25) MIUHAN while identifying the clothes of the deceased Mahendra Singh had identified even the under-wear and Baniyan of the deceased. It cannot be imagined how the witness could recognise or see as to what and which undergarment the deceased was wearing. This further strengthens the conclusions that the witness Mithhan has identified himself with the prosecution and has not given truthful account of the incident. Munna P. W. 3, the driver of the bus, has stated that he could know the name of the deceased only after the death of the deceased. If Mitthan is to be believed that he was present in the bus from which the deceased was abducted and he informed all concerned that the person abducted was Mahender Singh of A tern a, there is no reason to understand as to why the driver of the bus did not know the name of the deceased at the time of abduction. The statement of Munna also belies the statement of Mitthan, P. W. 1, the informant in the case Jagat Singh, P. W. 6, the father of deceased, has stated that the station officer recorded his statement and the statement of Pravesh Kumari on 3rd and 4th day of the incident whereas the Investigating Officer says that he recorded the statement of Jagat Singh on 21. 2. 1977 and did not record the statement of Pravesh Kumari. This also shows -that the case diary does not give the correct account of the investigation.

(26) THE post mortem report shows that semidigested food of 5 ounce was found in the stomach of the deceased. Doctors evidence prove that the said semi-digested food would have been taken atleast four hours before the death. In this view of the matter, if the prosecution story is to be believed the deceased must have taken his meals at 6. 00 A. M. in the morning in the month of February, 1977. This is unusual. A person, who is going to the court at 9. 00 or 10. 00 A. M. will not take his meals at 6. 00 a. m. This circumstance also creates doubt regarding the correctness of the incident in the manner which has been alleged by the prosecution.

(27) PROSECUTION case is that the deceased was going to attend the court in connection with a complaint filed by Mahendra Singh against the present accused for raping the minor girl, namely, Pravesh Kumari and Rajnish regarding whose guardianship, litigation was going on. The case of the appellants is that on the relevant date, the girls were in the custody of the appellants by the High Courts order. It has come in evidence that in a matter regarding guardianship an order was passed ALLAHABAD HIGH COURT Page 10 of 11 on 3. 9. 1976 by the High Court directing that the wife of Raj Kumar, appellant, namely, Smt. Savitri Devi will function as guardian of the minors. A complaint was filed by Mahender Singh deceased under Section 376 I. P. C. against the present appellants on 7. 10. 1976. In these circumstances, it was necessary for the prosecution to have proved that the girls were in the custody of the deceased and they were to be examined under section 202 Cr. P. C. on the date of occurrence in connection with the complaint filed by the deceased against the present appellants. The prosecution did not give any explanation, as to why the statements of the girls were not recorded during investigation. P. W. 6 Jagat Singh, however, states that the statement of Pravesh Kumari was recorded by the Investigating Officer. Perhaps her statement did not support the prosecution case and for this reason the said statement has not been brought on the record by the Investigating Officer.

(28) THE complaint u/s. 376 etc. I. P. C. was filed by Mahendra Singh deceased against the present appellants on 7. 10. 1976. It has come in the statement of Jagat Singh that on earlier occasion the girls whose statement were to be recorded under section 202 Cr. P. C. namely, Pravesh Kumari and Rajnish went to the court but their statements were not recorded. It is the case of the prosecution that the appellants were determined to see that the girls do not give their statements in the case in support of the complaint. If this stand is correct, then it is not understandable as to why the appellants did not make any effort to either kidnap the girls when they were going to appear as witnesses in the case or to cause harm to deceased Mahendra Singh. For all these reasons, it was necessary for the prosecution to have filed atleast the order-sheet of the complaint case filed by Mahendra Singh deceased against the present appellants under section 376 I. P. C. etc. This is another serious lacuna in the prusecution case. Informant Mitthan Lal in his statement has stated that he lodged the F. I. R. at 11 or 11. 30 A. M. The information that Mahendra Singh has been killed reached police station Chhatari at 1. 00 P. M. also corroborates the statement of Mitthan Lal that the report was lodged at 11 or 11. 30 A. M. This shows that the prosecution has developed Mitthan Lal and Mahendra Singh travelling in the bus at 10. 00 A. M. to adjust the prosecution case of kidnapping from the bus. The report seems to have been anti-timed for fitting it with the prosecution story.

(29) THERE is another aspect of the matter that as soon as the bus left Pahasu, it was stopped within two or three miles from Pahasu. Mitthan Lal knew the deceased and was very much concerned with the abduction of the deceased and for this reason he stated that instead of going to Aligarh as per his schedule visit, he remained stationed at Chhatari. If he was so much concerned with the abduction of the deceased Mahendra Singh from the bus, there is no justification for his not dropping at the place where the abduction was done and lodging the F. I. R. at police station, Pahasu and giving the aforesaid information to the father and other family members of deceased Mahendra Singh. This also shows that the entire conduct of Mitthan Lal belies the prosecution case.

(30) LASTLY, it has come in evidence that the information of the incident of kidnapping of Mahendra Singh reached Pahasu Police Station at 11. 30 A. M. and thereafter Sub Inspector, Pahasu took up the investigation, then how sub Inspector, Chhatari went to prepare the inquest report. The two types of simultaneous investigations were going on, one by Sub Inspector, Pahasu who went to Chhatari and thereafter to the place were kidnapping was alleged alongwith the witnesses but he did not go the place where the deceased was reported to have been found killed, and the other by Sub Inspector, Chhatari who went to the place where the body of the deceased was reported to have been found and prepared the inquest report. The vital link evidence of Sri Ravindra Singh, Sub Inspector and the Constable; who was deputed by Sub Inspector, Ravindra Singh to guard the dead body of Mahendra Singh has not been examined by the prosecution. All these show that there are serious lacunas in the prosecution case which create doubt regarding the correctness of the prosecution story.

(31) FOR all these additional reasons, I agree with my learned brother that the prosecution has failed to prove the case beyond reasonable doubt and appellants are entitled to the benefit of doubt. The order of conviction passed against the appellants by the trial court has not looked into the aspect, which I have considered and as such, the said order of conviction passed against the present ALLAHABAD HIGH COURT Page 11 of 11 appellants by the Sessions Judge is liable to be set aside. Appeal allowed.