1990 PLP 1402 (MLD)

6. The appellants pleaded not guilty to the charges framed against them and denied the commission of alleged offences. Ram Sunder and Ishtiaq Hussain denied the fact that they accompanied S.I. Sarjoo Singh at the time of investigation of the case relating to the theft at Pitam's house. S.I. Sarjoo Singh asserted that he had recovered a pistol and ammunition from Zalim and he was falsely implicated as the family of Zalim was annoyed with him. About the death of Bharat, this S.I. pleaded that the death took place under the circumstances as mentioned by him in the note which was sent to the police station immediately after the incident. Constable Ram Sunder took up the same plea which was taken by SI Sarjoo Singh. Maiku and Mullu appellants maintained that CID people wanted them to support the prosecution theory and they were interrogated but when they did not support the theory they were falsely implicated. One Chakkardin who was a witness for the memo of alleged recovery of the bicycle from Bharat's possession was examined by the accused persons in their defence.

7. The learned Sessions Judge and the High Court accepting the testimony of the prosecution witnesses convicted the appellants mentioned above in the manner as indicated earlier.

8. Before us, it was contended by learned counsel for the appellants that in this case even according to the theory of prosecution it is not possible to convict the appellants for an offence under section 147 or for any other offence with the aid of section

149. It was contended that in fact the information given to the Sub -Inspector was that Sitaram has been done to death and his body was thrown in the river and it was in pursuance of that information that accused Bharat suspected for the offence was taken in that direction. It was also contended for the appellants that the prosecution story as has been brought out at trial discloses that the incident has developed at different places and times and it could not be said that the whole incident resulting in the death of Bharat was one.

9. The fact remains that a cycle, was recovered although prosecution now suggests that it was not recovered from the custody of Bharat but was recovered from the field. It is also clear that a pistol alongwith cartridges was recovered and sent to the Police Station although now it is alleged that a final report was submitted about that offence. Under these circumstances it was contended hat it could not be disputed that a report about theft at Pitam's house was sent to appellant Sarjoo Singh Sub‑Inspector for investigation and during investigation it was also disclosed that one Sitaram has been done to death. Now it is alleged by the prosecution and it is not disputed that this Sitaram is alive but there is no material to indicate that during the investigation at the relevant time it was clearly stated to the Investigation Officer by any one of the persons that Sitaram has not been killed and is alive. It is also contended by the learned counsel that in view of the dates mentioned above it is clear that the investigation in this case started after a long lapse of time. The report by Indal was lodged on 16‑3‑1967. On 14‑5‑1968 case was registered and investigation commenced. For the first time a statement of witness was recorded more than a year after. Therefore it would not at all be safe to rely on the testimony of these witnesses. There is no independent corroboration of their testimony. It was urged that it would be unsafe to sustain the conviction of the appellants.

10. We have heard learned counsel for the parties and have gone through the evidence in detail. It is clear that a report about theft at the house of Pitam was recorded at the Police Station on 13‑3‑1967 and this report was sent by the Heal Constable to the SI for investigation as the SI was already in the area. It also could not be disputed that on 15‑3‑1967 a pistol and cartridges were recovered although whether there is a dispute as to recovery from Zalim PW I. but they were recovered and sent to the Police Station alongwith the report. Thereafter the Sub‑Inspector was pursuing the investigation in respect of facts and during this investigation he was informed that Sitaram has been done to death and his body was thrown away. It is therefore clear that for the purpose of search of dead body of Sitaram, the Police Officer was pursuing the investigation. It is also clear that at various stages during, the progress of investigation report was sent by the Sub‑Inspector at the Police Station.

11. Now according to the prosecution, this was not the true version but it must be clearly understood that unless the prosecution is able to establish its case beyond doubt it could not be said that the earlier version of the present appellants which was sent to the Police Station was not probable. Since the prosecution is not able to establish the case beyond doubt, the appellants are, entitled to advantage thereof.

12. As discussed above it is clear that this Sub‑Inspector was pursuing investigation which is his duty and therefore it could not be said that while he was pursuing the investigation, it was in pursuance of an unlawful object. Therefore section 147 or 149, I.P.C. could not be attracted. Even according to the A prosecution, the Sub‑Inspector was pursuing the investigation to search the articles stolen from the house of Pitam in the course of which he was informed that Sitaram was killed and he wanted to recover the dead body. While pursuing the investigation, the appellants resorted to violence. The object was either to recover the dead body of Sitaram or to recover the stolen property of Pitam. This object apparently could not be said to be an unlawful object and therefore these appellants could not be convicted under section

147. The High Court appears to have ignored this aspect of the matter. 1t is also clear that if these appellants could not be convicted for an offence under section 147, they also could not be convicted under any section of the Penal Code with the aid of section

149. The conviction of these appellants under section 147 and with the aid of section 149 could not therefore be sustained.

13. It will now be necessary for us to examine the individual act of each of the accused person to find out their culpability. In this context, if we examine the evidence in the case it is rather interesting. So far as killing of Bharat is concerned the prosecution evidence itself is not clear who was responsible for the offence. The only allegation is that he had gone towards the river and there he was found lying injured. The injuries on the body of this person indicate that they are injuries by hard and blunt object, but nothing on any vital part of the body. It is also clear from the medical evidence that none of the injuries could be said to be sufficient in the ordinary course of nature to cause death. Quite naturally, the High Court felt that anyone who is responsible for causing these injuries could not be convicted for anything more than section

325. But as it was not possible to convict any particular individual for inflicting any one of those injuries, the High Court with the aid of section 149 convicted all the appellants. But as discussed above as no one could be convicted with the aid of section 149 it will be necessary to find out who inflicted what injury on the person of Bharat. If we examine the evidence and also the contradictions made by the witnesses with their earlier statements it is difficult to come to any conclusion in respect of injuries to Bharat. As regards injuries to others it will be clear from the evidence of PW 1 Zalim that although in his examination he has stated about injuries being inflicted on him and also the fact that he was hit on his leg but in cross‑examination he admitted that he has not in his statement during investigation made such a statement.

14. Immediately after the incident the earliest version is the report (application given by Indal) on 16‑3‑1967. But during the cross‑examination this witness stated that in the report he has mentioned certain facts which were noticed by him, certain facts about which he had heard and certain facts he omitted to mention. He said that incident of inserting chillies in the private part of Ramdei was seen by him but then admitted that in this report made by him it has not been mentioned. This is what he said in cross‑examination: "It is correct to say that I got written in the application some facts which I saw myself, some of them which I heard. The insertion of chillies in the vagina of Ramdei was seen of my own eyes. I have not stated that I have seen the insertion of chillies in the vagina." The statement by Indal who is alleged to have made the application which is the foundation of the prosecution makes it clear that he had not stated in that application what he personally saw. This part of omission is an important aspect of the prosecution version. Under these circumstances this evidence of the prosecution witnesses who for the first time were examined more than a year after the incident is hard to believe. In our opinion it would not be safe to rely on the testimony of these witnesses. As stated above even going through the evidence of these witnesses, it is very difficult to come to a conclusion about the individual f acts of each of the accused. The general nature of evidence is that torture was done. They were harassed under the guidance of the Investigating Officer i.e. the appellant Sub‑Inspector Sarjoo Singh, but there is no precise statement about what injuries were caused to what person and by whom.

15. It is true that Bharat has lost his life. It is also true that he had some injuries by hard and blunt weapon on his body but it is not clear under what circumstances it happened and how present appellant Sub‑Inspector Sarjoo Singh could be connected with those injuries.

16. As regards the incident of Ramdei, neither the Sub‑Inspector nor any of the Constables was alleged to have been responsible for the alleged story of introduction of powdered chillies in her private part. According to her, Maiku Chowkidar took the chillies in powder form and Mullu put the chillies in the vagina. In her cross‑examination she herself admitted that she did not tell about the incident to anyone. She told about it to the CID Inspector after 1‑1/2 years or 2 years after the incident. She also said that she had no injury mark and that she was not medically examined. On the basis of this evidence coupled with what Indal stated in his application no one could be convicted for the alleged offence against the appellants. The investigation conducted is perfunctory and casual. As indicated earlier on 16‑3‑1967 Indal PW 2 gave a written application and it was on 14‑5‑1968 more than a year after that, a case was registered on the basis of that application. Ultimately the charge‑sheet was filed on 10‑6‑1971. These circumstances go a long way to discredit the prosecution version.

17. In the result, the appeals are allowed and the conviction and sentence passed against all the appellants are set aside. Z.S./245/F.C Appeals allowed.