S.K. Agarwal and V.S. Bajpai, JJ.

1. This appeal was preferred by Appellants Tilak Ram alias Nanku, Chironji and Munna against their conviction under Section 302/34, I.P.C. and sentence of life imprisonment under the above said charge. They were also convicted for the offence under Section 201, I.P.C. and sentenced to one year R.I. Both the sentences were to run concurrently.

2. The brief facts of the case as contained in the first information report are that the deceased Anang Pal s/o Bachan Singh and the first informant were residing in Ashok Nagar Colony. On the date of occurrence, i.e., 6.9.1980 Anang Pal in the company of Ramdeo went at about 2.00 p.m. for cutting wood in the jungle. They were chased by the Forest Guard including the Appellants. They tried to catch hold of them. Anang Pal and Ramdeo ran from there to east. Ramdeo came back to the house of Anang Pal at 4.00 p.m. He informed Bachan Singh that Nanku and Munna had chased Anang Pal. On his information Bachan Singh accompanied by some of his village people came to the forest and made a search for his son, Anang Pal. He also made an enquiry from the Forest Guard whose names were made known to him by Ramdeo. But according to him they did not respond properly to his query. Bachan Singh suspected that his son might have been murdered. The search was pursued on the next day also. The first information report came to be lodged on 8.9.1980. It is Ext. Ka-1. Its check report is Ext. Ka-2. The case was registered in the General Diary, its entry is Ext. Ka-3. The case against three Appellants rests partly on the direct evidence of Ramdeo and partly on the circumstantial evidence provided by P.W. 3 Harichand, P.W. 4 Gambhir Singh and P.W. 5 Mehandi Hasan. Bachan Singh, father of the deceased is not an eye-witnesses. He proved the statement made to him by Ramdeo. Ram Deo himself is a witness of initial chase by the forest guards. To this extent he provides eye-witness account.

3. We have also examined the post-mortem examination report which shows two incised injuries on the person of the deceased, one larynx deep on the lower part of neck and other bone deep on the lower and middle part of sacrum. The general condition of the body was very bad. Both legs below knee were missing. Only stump of penis was present (1-1/2 cm. 1-1/2 cm.). Skin and soft parts of skull and neck, both hands, upper arm and upper part of chest and cartilage were absent, soft parts of pericardium and soft parts of lower extremities were heavily mutilated. Oeshphagus in upper part was eaten away. The whole body as such was badly mutilated. The inquest memo shows that the Investigating Officer was not able to identify whether it is a male or female body. This fact is admitted by the Investigating Officer in his evidence. The body was identified by Bachan Singh, father of the deceased Anang Pal. In this connection the statement of P.W. 5 Mehandi Hasan is also relevant. It was he who stated about the body was being seen floating in the river Sharda. This witness was at a distance of about 50 steps from the river at that time. He took out the body from the water. He claimed that he was knowing the body. Then he further stated that the people present there said that it is a male body. Bachan Singh told him that this body is of Anang Pal. In this connection the evidence of Bachan Singh is also of some relevance. According to him as stated in para 6 on 11.8.1980 the dead body of Anang Pal was found from the river Sharda. He claimed that he identified it as the body of his son. He said that his son at the time of leaving his house for forest was wearing bushirt and pyjama. He had also a rakhi tied around his wrist. He admitted that when the body was recovered from the river there was no clothe on the body. There was only a rakhi tied around wrist. He also went to the forest with an axe and saria. He identified these articles. It has no evidentiary significance as it was taken by the Investigating Officer from the office of the forest department much later and no officer of the forest department was examined. He further admitted in para 8 during the cross-examination that he identified the body from its feature, bushirt and rakhi. He admitted that the presence of the rakhi on the wrist of the deceased was told to the Investigating Officer in his statement but why it was not there he could not explain. He further admitted that in his first information report there was no mention of the factum of rakhi being tied around the wrist of his son. He further stated in para 12 that on the date of occurrence Sutia River was also full of water. Anang Pal did not know to swim. He denied that the dead body recovered from Sharda River was not of his son. From the statement of this witness it is clear that he clearly admitted in para 6 that when the dead body was recovered there was no clothes on the person of his son except a rakhi tied around his wrist. In para 8 he stated that he identified his son from his feature, bushirt and rakhi. These conflicting facts clearly indicate that he is not an honest witness. The inquest memo shows that there was no male organ visible on the body. The dead body was completely naked and only a rakhi was found tied on his wrist. Thus, no question of identifying the body by Bachan Singh on the basis of the bushirt on the body of the deceased arise in the case. Most parts of the body were missing moreover it was badly mutilated and disfigured. Therefore, the identification of the dead body claimed to be that of Anang Pal by Bachan Singh from the feature has no basis and identification from rakhi is very skeptical and highly unsafe. The factum of rakhi is neither disclosed in the first information report nor in his statement to the Investigating Officer. No clothes were also specified by him in his report.

4. Thus, so far as the identification of the dead body by Bachan Singh is concerned we have serious doubts about his identifying the same from his feature, bushirt or rakhi. The dead body was badly mutilated. It was a case of brutal assault probably on this body. His male organ was also chopped off from the root. This fact gives rise to a different situation. It tends to point to some other motive for the murder of the person whose body it was. It had been recovered floating in the river Sharda by the boatman P.W. 5 Mehandi Hasan. The statement made by the Investigating Officer that it was not possible to identify the body in this context has serious ramification and bearing upon the entire prosecution case. We do not place any reliance on this piece of prosecution evidence.

5. So far as P.W. 2 Ramdeo is concerned, he also cannot be relied upon regarding identification of the recovered body as that of Anang Pal. He admitted that he had gone to see the body of Anang Pal. He denied that the dead body was eaten out by animals. The scalp was missing. The dead body was identifiable according to him. The post-mortem report clearly runs contrary to his evidence.

6. We, therefore, do not find it safe to place any reliance on his testimony also on the identification. He is only a witness of running away and also of assault by three persons with danda upon the deceased. For the first time in his testimony the story that these persons, after the victim fell on the ground receiving the blunt object injuries, carried him on their shoulder towards the river appeared. He admitted that he did not disclose this fact to any one not even to Bachan Singh or the Investigating Officer before disclosing this in the Court.

7. Thus, so far as this witness is concerned, his identification of the dead body does not inspire our confidence. The age of the deceased was 18 years. Until the post-mortem examination the dead body was unknown. The post-mortem examination was conducted on 12.9.1980. This further clinches the issue that till the post-mortem examination whereabouts of dead body were neither known nor established. It was actually not identified soon after its recovery from the river. After discovery of the dead body it was sent for the post-mortem examination and after post-mortem examination report became available it seems the front page of the inquest was completed. It is further fortified from the circumstances that there is cutting in the time of registration of the case and the time of beginning of the inquest on this memo. The report about the recovery of the dead body apparently was received much earlier but it had been made by overwriting at 21.50 and 4.00 p.m. The time of completion of the inquest memo is shown as 5.30 p.m. It appears that the dead body was apparently discovered sometime during early hour of the morning and immediately thereafter the inquest was shown to have been prepared on 10.8.1980 by the police. The father was persuaded or coerced to accept the said body as that of his son by the Investigating Officer after the autopsy.

8. The first information report was transcribed after the inquest proceedings. There cannot be any doubt in this fact. This is clinched from the post-mortem examination report, which shows the dead body to be that of an unknown man. As earlier discussed the post-mortem examination was conducted on 12.9.1980 at 11.00 a.m. The doctor would have never written this in the post-mortem examination report prepared No. 12.9.1980 if the body was really identified soon after its recovery as now alleged in the Court. After post-mortem examination at 11.00 a.m. it had been completed in details showing it to be that of Anang Pal. The testimony of both P.W. 1 and P.W. 2, in our opinion, in this respect is unreliable. The testimony of the witnesses on the circumstantial evidence like Harichand P.W. 3 that he saw Anang Pal at 2.00 p.m. running towards Sutia river is equally unreliable. At that time this witness claimed himself to be in the field of Gurdeep Singh. He had seen three persons following the deceased. He further stated that one man was running saying pakro-pakro from inside the jungle. According to him other two who were following were Nanku and Chironji. Thus, there are important contradictions in the statement of this witness. Thereafter he claimed that he had seen the accused persons assaulting Anang Pal with danda. This fact was not told to P.W. 1 Bachan Singh, father of the deceased by Ramdeo, a solitary witness who had accompanied the deceased and ran along with him to save themselves from being apprehended by the forest guard. He further stated that Anang Pal after receiving blunt object injuries fell on the ground and thereafter these three person tied him and carried him towards the river. He ran away on account of fear and did not disclose this fact to any one till his statement was recorded in the trial. According to him the deceased was assaulted only with lathi and the Appellants had only lathi. At that time no other weapon was seen by him being plied by the Appellants. According to him the injuries were on the leg and back. This is clearly in conflict with the medical evidence. He did not see Ramdeo in the village. Anang Pal was 3 zari away from him. Therefore, it will not be possible for this witness to have seen the deceased running away and these Appellants chasing them. This story did not find corroboration from first information report. Only story that was told by Ramdeo to Bachan Singh available from the first information report was that the people of the forest department shouted pakro-pakro and two persons Nanku and Munna were seen by him following them. This witness claimed that he had seen them chasing Anang Pal towards plantation in the east. This story that the deceased was assaulted by these two persons, one of them armed with a danda does not find any corroboration from any other source. Ramdeo did not inform the Sub-Inspector about the assault at all upon the victim by these two accused. The presence of Bachan at the farm of Gurdeep Singh is also not borne out. He had made a dubious statement in this regard. Initially this witness Ramdeo Singh stated that he had gone to the field of Gurdeep Singh for watching his makka crop. Then in the next breath he stated that he accompanied Anang Pal from his field. He did not go with him from his house. Anang Pal was not caught by the abovesaid forest guards in his presence. Therefore, we find it difficult to place any implicit reliance on the evidence of this witness as well.

9. P.W. 4 Gambhir Singh claimed that he was fishing in the river Sutia. It was 3.00-4.00 p.m. He heard alarm of pakro-pakro. He came out of the river and saw Chironji, Munna and Nanku carrying unconscious Anang Pal on their shoulder toward Sutia River. They also held danda in their hands. Accused Nanku had also possessed a kulhari and a saria. They thereafter threw Anang Pal in Sutia river. He concealed himself in the crops to avoid being seen by these Appellants. According to him thereafter the Appellant sat down underneath a tree and smoked biri. Thereafter they withdrew to their huts. According to him Anang Pal was aged about 18 years. These facts were not disclosed by Bachan Singh. He did not state to the Investigating Officer that these Appellants were holding any danda. He did not inform the Investigating Officer in his statement under Section 161, Cr. P.C. that Nanku was possessed of an axe. He failed to explain the omission of this fact in his statement made to the Investigating Officer. P.W. 1 Bachan Singh also denied that P.W. 4 had told him anything. P.W. 4 admitted that Anang Pal was his neighbour and a friend also. He admitted that he did not see Harichand and Ramdeo in the vicinity. He did not inform the father of Anang Pal nor visited his house and at 8.30 p.m. he went back to this house. In the trial court he tried to get over this difficulty by stating that he had gone to the house of Anang Pal but his family had already learnt these facts therefore he did not disclose anything to P.W. 1 Bachan Singh. He admitted that before informing the Investigating Officer he did not inform this fact to any one in the village as well. As a matter of fact these fact are lacking even in his statement to the Investigating Officer as we have earlier referred. He further admitted that he had seen the incident from a distance of 200-250 metres. He is the person who had gone to search Anang Pal along with P.W. 1 Bachan Singh, father of the deceased for 2-3 days yet he did never told the above facts to father of the deceased. For the above discussion we do not find ourselves agreeable to place any implicit reliance on his evidence too. He seems to us a got up witness.

10. So far as P.W. 5 Mehandi Hasan is concerned it is not available to the prosecution for any good. His statement does not throw any light on the identification of the dead body recovered by him from the river. The dead body was coming from other side and was floating from Sharda towards river Sutia he stated it during trial. That means that the dead body was thrown somewhere else and it travelled from the direction of river Sharda and was coming in the direction of river Sutia. According to prosecution case body was thrown in river Sutia. He himself could not identify the dead body until he was told so by Bachan Singh P.W. 1. Thus, we discard his evidence also.

11. The testimony of the Investigating Officer P.W. 6 Janardan Ram is most curious. According to him the arrest of the Appellants was made on 10.8.1980. The dead body was recovered on 11.8.1980 on the information given by Chironji. On receiving this information he went to Sutia river and prepared its G.D. at 14.00 p.m. The entry was made certainly afterwards. There is overwriting in the time of General Diary entries. He further admitted that kulhari and saria were obtained from the forest range office on 17.9.1980. There was blood on the axe. It was so said because the injuries on the recovered body were incised. The scribe of the report is Harichand. He was examined in the trial by the prosecution. From the statement recorded under Section 161, Cr. P.C. of P.W. 3 Harichand Mishra it is apparent as admitted by the Investigating Officer also that Bachan Singh told all the facts to Harichand who dictated the first information report. It was not clear to him whether dead body is of a male or a female. It was badly mutilated by animals. He tried to explain it that in the inquest memo initially he wrote 2.00 a.m. and then made it 14.00 p.m. by over writing. This is not so as is apparent from the memo. Looking into the inquest memo it seems that the initial time was written in a different ink. He admitted that on the wrist of the dead body a thread or rakhi was present. He further admitted that Bachan Singh did not disclose to him that any rakhi was tied around the wrist of the deceased Anang Pal. Thus, the identification of this dead body is not properly established in this case. He seems to have played foul with Bachan Singh.

12. There is conflict regarding nomination of Chironji also in this case. His name did not find any mention in the first information report. It was told by Ramdeo at the stage of investigation to the Investigating Officer. He admitted that Bachan Singh did not inform him that the people present in the forest told him that his son was surrounded by the forest guard. He further admitted that Gambhir Singh did not inform him that the Appellants were having danda and Nanku was also having a kulhari and saria. He denied that since there was furor in the village therefore in order to calm down the villagers a floating body was picked up and a false case was foisted upon the Appellants.

13. We are of the opinion that with the help of P.W. 5 Mehandi Hasan the police picked up a floating dead body and ended the case convincing the father P.W. 1 Bachan Singh that it was the body of his son. Since the body was discovered 3-4 days after and was in a highly mutilated condition he was made to believe in it.

14. Thus, as per our discussion we are of the opinion that the case against these Appellants for murder of Anang Pal has not at all been proved beyond reasonable doubt. The eye-witnesses account allegedly of Ramdeo P.W. 2 does not inspire our confidence. The testimony of Ramdeo cannot be accepted by us for a very simple reason that he stated that he did not go with Anang Pal from his house. According to him he did not go from the house of Anang Pal but joined him at his field. (sic) 15. We, therefore, seriously doubt his going with Anang Pal to the forest.

16. We have serious doubts about the presence of Ramdeo. There is enough evidence that he could not see that those who were chasing Anang Pal were having danda in their hands. Had he been present with the deceased he must have disclosed this fact to Bachan Singh. We have earlier discussed some more serious lapses occurring in his evidence.

17. So far as P.W. 3 Harichand and P.W. 4 Gambhir Singh are concerned we have already discussed their evidences and given our reasons for not accepting their evidences earlier.

18. For the reasons discussed above we allow this appeal. The conviction of the Appellants and sentence of life imprisonment under Section 302/34, I.P.C. is hereby set aside. They are acquitted of the charges. They are on bail. They need not surrender. Their bail bonds and sureties are hereby discharged.