These two cross-appeals arise against the judgment of the learned Sessions Judge, Jhunjunu, dated the 18th of June, 1955 by which he has acquitted Dallela alias Dalel Singh for offences under secs. 302/34 and 364, I. P. C. He was convicted under sec. 342, I.P.C. and sentenced to one years rigorous imprisonment. Both the State and the accused have filed appeals against that order. The appeal on behalf of the State is Criminal Appeal No. 161 of 1955 and the appeal on behalf of the accused is Criminal Appeal No. 121 of 1953. 2. The prosecution case briefly is that on the 24th of September, 1953, Dalela accused along with two other persons went to the house of Swami Bishoda Nand (also called Yashoda Nand) in the village Barwa in the after-noon. At the house of Swami there were Mst. Naraini P. W. 9, Shri Onkar Singh P. W. 5, and Phuia Mina P.W. 12. Mst. Naraini was a Jat girl but was brought up by Swamiji. Onkar Singh was a Police Constable who had come to serve a process on the Swamiji from the police out-post. Phulia was a cultivator who had come from another village to obtain medicine from Swamiji. Naraini was sleeping in the Tibari of the house and a dacoit came to her. He was armed with a gun. He removed the blanket with which she had covered herself and gave a slap on her face and told her to show the cash and ornaments of the Swamiji. On her reply that she knew nothing about it, he went away to the Swamiji who was sitting in another part of that house. The dacoits were three in number. They tied the hands of swamiji with a rope and began to beat him with a lathi. Swamiji had a camel in the nohra. It was brought and the Swami was made to sit on it and tied and was being taken away. Naraini asked the dacoit as to where they were taking Swamiji and the dacoits replied that they were taking him to Nawalgarh Thana and would send him back next morning. At that time the sound of a bus coming from Nawalgarh side was heard. The dacoits asked Onkar Singh on threat of shooting him dead to stop the bus. Onkar Singh as stated earlier was a police constable. At that time the sound of a bus coming from Nawalgarh side was heard. The dacoits asked Onkar Singh on threat of shooting him dead to stop the bus. Onkar Singh as stated earlier was a police constable. On the singal by Onkar Singh the bus stopped. The bus was driven by Bajranglal P. W. 2. himram P. W. 4 was the cleaner and Gakul Singh was the conductor of the bus. In that bus there were about 20 to 30 passengers including one Circle Inspector of police, Shri Ismail. There were two constables also in it. One of them was Rankanwar Singh P. W. 17. The Circle Inspector was asked to get down and he did so. The driver was also forced to get down and the ignition key of the bus was taken from him. One of the dacoits fired his tommy gun at the Circle Inspector in front of the bus with the result that the Circle Inspector fell down on the ground and died immediately. Then all other passengers were asked to get down and they were asked to throw all their cash and ornaments on a piece of cloth which the dacoits had spread before them. The passengers threw their cash and ornaments. The two constables were made naked and were beaten. Later on the dacoits damaged the bus so that it could not move, took the watch of the Circle Inspector and went away taking Swami Bishoda Nand on the camel. It is alleged by the prosecution that Dallela was driving the camel on which Swami Bisohda Nand was made to sit in his front. Bishoda Nand was not seen or heard thereafter but is alleged to have been killed by the dacoits who abducted him. 3. The first information of this incident was made by Gokal Singh at Police Station, Udaipur at 10 a. m. on the 24th of September, 1953. The police reached the spot and investigated the case. Dallela accused was arrested by the Punjab Police at Rohtak of which information was received by the Rajasthan Police on the 18th of Jane, 1954 and he was brought by the Rajasthan Police on the 20th of June, 1954. The police reached the spot and investigated the case. Dallela accused was arrested by the Punjab Police at Rohtak of which information was received by the Rajasthan Police on the 18th of Jane, 1954 and he was brought by the Rajasthan Police on the 20th of June, 1954. During the course of investigation, a skull and a few other bones were recovered on the 29th of September, 1953 in the jungle near Bausdi by a part) of constables who had gone in search of Swami Bishoda Nand. The party followed the foot prints of the camels for some distance but they were not visible after the village Bausdi. About a mile from that village they found that a saffa was lying on a small bush. At a distance of about 20 paces from this bush a skull without lower jaw was recovered. A pair of shoes, a handkerchief, torn shirt and two pieces of Dhoti were also lying near about the skull. The clothes were ail stained with blood. The earth of the place was also stained with blood. Lalaram, one of the party went to make a report to the Sub-inspector Shri Shokin Singh P. W. 1. He went on the spot and took all these articles in his possession. On investigation it was found that the articles Exs. 1 to 5 were the same which were on the person of Swami Bishoda Nand when he was abducted from his house. 4. Two separate challans were filed against Dallela accused in respect of the incident of that day. One related to the abduction of Swami Bishoda Nand and his subsequent murder and the robbery of his camel. The second challan related to the robbery of the bus passengers and the murder of Shri Ismail C. I. Police. The present case relates to Bishoda Nand. The learned Magistrate committed Dallela accused under secs. 304 and 397 and 302/34, I.P.C. The learned Sessions Judge amended the charge and he omitted the case of robbery of the camel from the charge and we are told that this charge was added in the other case. 5. The accused denied the charges but did not produce any defence. The learned Sessions Judge held that it was not proved that Swami Bishoda Nand was murdered by the accused or by any other person. He, therefore, acquitted the accused under sec. 5. The accused denied the charges but did not produce any defence. The learned Sessions Judge held that it was not proved that Swami Bishoda Nand was murdered by the accused or by any other person. He, therefore, acquitted the accused under sec. 302/31 I.P.C. He also acquitted him under sec. 364 I.P.C but convicted him under sec. 342, I.P.C. and sentenced him as aforesaid. The State has filed an appeal that the accused be convicted under secs. 302 and 364, I.P.C. The accused has filed an appeal that he did not take pare in any of the offences alleged against him. 6. We first take up the appeal filed on behalf of the State. It was contended on behalf on the State that it should have been held by the learned Sessions Judge that Swami Bishoda Nand was murdered by the accused and his companions. The evidence on the point of murder consists of circumstantial evidence. There is no eye, witness of murder. The circumstantial evidence consists of the following:— (1) Recovery of a skull and a few other bones from the jungle near the village Bausdi. (2) Recovery of Articles 1 to 5 which were alleged to be on the person of Swami Bishoda Nand at the time when he was abducted. (3) The fact that the Swami Bishoda Nand was not heard of since the date of abduction by those who naturally would have heard of him, had he been alive. 7. The learned Sessions Judge is of opinion that this evidence is quite insufficient to prove the murder. He went to the extent of holding that it was not even proved that the death, of Swami Bishoda Nand had taken place. Now it is proved beyond doubt that Swami Bishoda Nand had not been heard since he had been taken away by the dacoits and his other companions by any one who should have heard of him. It is also proved beyond doubt that the Arts. 1 to 5 were recovered by Lalaram and his party from the jungle near the village Bausdi. The learned Sessions Judge is of opinion that it was not proved that the Arts. 1 to 5 were on the person of Swami Bishoda Nand when he was abducted. Mst. It is also proved beyond doubt that the Arts. 1 to 5 were recovered by Lalaram and his party from the jungle near the village Bausdi. The learned Sessions Judge is of opinion that it was not proved that the Arts. 1 to 5 were on the person of Swami Bishoda Nand when he was abducted. Mst. Naraini, Shri Onkar Singh and Phula have been produced by the prosecution to prove that those articles were on the person of Swami Bishoda Nand when he was taken away by the dacoits. Mst. Naraini P. W. 9 stated that Swamiji was putting on a black line shirt and a Dhoti and a Saffa and he was also putting on the shoes. She identified the clothes and the shoes as those which Swamiji was putting on when he was taken away. The learned Sessions Judge has remarked that this witness at first stated that she could not identify the clothes, but when another question was put by the Public Prosecutor, she stated that she could identify the articles. Now this remark in the judgment is not borne out by the record. It appears from the record that Mst. Naraini stated as follows :— "I cannot identify these clothes. I can identify these clothes. The clothes and the shoes Arts. 1 to 5 which are lying in the court are the same which the Gosai was putting on." From the above statement, it cannot he said that the witness replied to one question that she could not identify and replied to another question that she could identify It appears that the witness at first stated that she could not identify the clothes but later on corrected herself that she could identify the articles. There is no room for the comment made by the learned Sessions Judge that she changed her statement on question being repeated by the Public Prosecutor. The learned Sessions Judge has further observed that she could not point out any marks of identification on those articles. But it appears that the witness had given at least with respect to the shirt a complete description in saying that it was the black lined shirt. We have also seen the shirt. It tallies with the description given by the witness. The colour of the saffa is the same as given by the witness. But it appears that the witness had given at least with respect to the shirt a complete description in saying that it was the black lined shirt. We have also seen the shirt. It tallies with the description given by the witness. The colour of the saffa is the same as given by the witness. There is nothing to discredit her if she could not give any further particular identifying marks. We do not think that her statement can be rejected on that ground. 8. Then it it stated in the judgment that those articles were such which could be commonly purchased in the market. Though the articles were of common use, yet they were the articles which had been used for a sufficient time and thereby she was in a position to identify them as she must have seen the Swamiji wearing them a number of times. Then it is stated by the learned Sessions Judge that no test identification was made before the learned Magistrate It appears that after the clothes had been recovered from the jungle, they were shown to the witness by the police so that the police might be certain that they were the Swamijis clothes and the witness is said to have stated to the police that they were of Swamiji. A subsequent identification proceeding was not thought necessary. For these reasons we do not think that her statement can be deemed to be worthless as criticised by the learned Sessions Judge. We place reliance on her statement in holding that Arts. 1 to 5 were on the person of Swamiji when he was abducted. 9. There are two other witnesses to prove the prosecution case on this point. Onkar Singh P. W. 5 stated that Arts. 1 to 5 were the same which Swamiji was putting on at that time. He stated in cross-examination that he had not seen any of the Arts. 1 to 5 before he saw them in the presence of the committing Magistrate. This might be due to faulty memory as according to Dalchand P. W. 11, those articles were shown to Onkar Singh at the police station. Then it is observed by the learned Sessions Judge that this witness had not a chance to remain often with Swami Bishoda Nand. This might be due to faulty memory as according to Dalchand P. W. 11, those articles were shown to Onkar Singh at the police station. Then it is observed by the learned Sessions Judge that this witness had not a chance to remain often with Swami Bishoda Nand. This is beside the point and is not sufficient to hold that he could not identify the articles which Swamiji was wearing when he was abducted. Onkar Singh is a constable and must have been impressed by what had happened on that day in his presence. Moreover he was the person who remained in charge of Swami Bishoda Nand after he (Bishoda Nand) had been tied with a rope when the bus was stopped. He must have had the opportunity of seeing for a long time what Swami Bishoda Nand was putting on at the time. 10. Phulia P. W. 12 is yet another witness who identified the Arts. 1 to 4 as those which Swamiji was putting on at the time when he was taken away. It appears from his statement that Swami Bishoda Nand carried on some sort of Ayurvedic practice and Phulia had gone to him from his village Parasram-pura for having medicines. On the day when he reached the house of Swamiji, Swamiji was not there. When he came he promised Phulia to give medicine next day. He, therefore, stayed with Swamiji for the rest of the day and the night. He was therefor a sufficiently long time with Swamiji and he could identify the articles which Swamiji were on that day and there is no reason to disbelieve him on this point. 11. On a proper scrutiny of the whole evidence we are of opinion that the prosecution has fully established that the Arts. Exs. 1 to 5 were articles which were on the person of Swamiji when he was abducted. 12. Now the case stands proved to this extent that the three dacoits who had come to the house of Swami Bishoda Nand tied his hands with a rope and took him away on a camel towards a jungle. Prior to this they searched bis house but nothing valuable was discovered. They had taken away his camel. It is also proved that the search party led by Lalaram had discovered a skull and certain bones and Arts. Prior to this they searched bis house but nothing valuable was discovered. They had taken away his camel. It is also proved that the search party led by Lalaram had discovered a skull and certain bones and Arts. 1 to 5 in a jungle in the village Basoda. It is also proved that since the date of his abduction, Swami Bishoda Nand was not heard of by any person who might have heard of him, had he been alive. It is not proved that the skull was that of Swami Bishoda Nand but there is a significant fact that the saffa and other articles were found at the place where the skull and the bones were found and the earth of that place was also blood stained. All these circumstances in our opinion lead to an irresistible inference that the death of Swami Bishoda Nand had taken place and he was no longer alive. 13. It is argued by the learned Assistant Government Advocate that the further inference from the circumstances proved by the prosecution is that the dacoits abducted Swamiji with intention to murder him and that subsequently these very dacoits or some of the persons at their instance murdered him. On this point the learned Sessions Judge is of opinion that as the prosecution alleged that the accused and his companions were party to the murder, they could only be charged and convicted under S. 302 or 302/34, I.P.C. and no charge against them could be drawn up under sec. 364 I.P.C. Reliance was placed on the case of Upendra Nath Ghoes vs. Emperor(1). In this court, counsel for the accused also relied on Alimjan Bidi vs. Emperor (2), Ijjatulla Akanda vs. Emperor (3), Kalaporla Saidulu vs. Hydrabad Government (4) and Akam Sheikh vs. Emperor (5). It is in Kalaporla Saidulus case that the proposition has been stated as a matter of law that when the case of the prosecution is that the person abducted has been murdered by the abductor, there is no scope for the charge under sec. 364 of the Indian Penal Code. Reliance was placed in that case on the cases of Akamshiekh (5), Ijjatulla Akanda (3) Upendra Nath Ghose (1). When we refer to these cases, it is clear that they are distinguishable on facts. 364 of the Indian Penal Code. Reliance was placed in that case on the cases of Akamshiekh (5), Ijjatulla Akanda (3) Upendra Nath Ghose (1). When we refer to these cases, it is clear that they are distinguishable on facts. In the earliest of these cases Alimjan Bidi vs. Emperor (2) the observation of the learned Judges was that there was no abduction. Henderson J., observed that sec. 364, I.P.C. provides for the punishment of a specific offence and is not intended as was indirect method of punishing persons who are suspected but not proved to have committed a murder. It was further observed that there was no evidence of abduction at all. In the case of Upendra Nath Ghose vs. Emperor (1), the learned judge told the jury that it was not essential to prove beyond doubt that the body recovered was the body of the girl. The observation was that having regard to the facts of the case, there can be no case of abduction under S. 364, I.P.C. unless it had been conclusively proved that the girl had been murdered. It wis held that "to tell the jury that even if they were not satisfied that the girl was murdered, they could still find the accused guilty of an offence under sec. 364 IP. C. was to mislead them on a most vital part of the case." In Upendra Naths case (1) therefore, the two secs. 364 and 302, where so connected that unless the murder was held proved an offence under sec. 364 could not be made out. In these circumstances in the absence of proof of murder it was held that the charge under sec. 364 had not been established. 14. In the case of Ijjatulla Akanda vs. Emperor (3), the circumstances were also such that if the case under sec. 364 was established, the graver charge under sec. 302 would also be established and if the graver charge was not established, the charge under sec. 364 also could not be established. The prosecution case was that several accused were seen taking away the victim at a river bank who was never heard of later. A corpse was discovered from that place and was identified to be the body of the missing woman. In these circumstances the conviction under sec. 364 also could not be established. The prosecution case was that several accused were seen taking away the victim at a river bank who was never heard of later. A corpse was discovered from that place and was identified to be the body of the missing woman. In these circumstances the conviction under sec. 364 I.P.C. was set aside and the case was remanded for trial on charges of murder or abetment of murder. 15. In the case of Akam Sheikh vs. Emperor (5), the prosecution evidence was that the deceased was forcibly taken away and never heard of and his corpse was discovered on the next day. It was observed that the prosecution case must have been that the three accused either themselves murdered the deceased or abetted his murder and therefore, the offence was triable by the Sessions Judge and not by the Assistant Session Judge. In none of these cases it was held as a matter of law that in no circumstances a charge under sec. 364 I.P.C. can be made out if the prosecution alleges that the deceased met his death after he was abducted and that this death was met at the hands of the abductors or other persons. 16. On the other hand there is a case of Ahmad vs. Emperor (6), where the circumstances were somewhat similar. The person abducted was held to have been murdered but it could not be said whether the persons who abducted him committed the offence. It was held that lesser offence under sec. 354 I.P.C. was made out. 17. Now in this case the circumstances are that the three persons were all armed. One of them was armed with a tommy gun. The accused was said to have been armed with big gun and the third accused was armed with a stick. These persons beat Swamiji and searched his house but they could not find anything worth taking with them. These persons further took away the camel of Swamiji which was tied at another place and which they asked Onkar Singh to bring to the house of Swamiji Finding that they could not get sufficient loot from the house of Swamiji, they managed to stop the bus. In that bus there was one circle inspector. One of the dacoits did not hesitate to shoot him and straight away kill him. In that bus there was one circle inspector. One of the dacoits did not hesitate to shoot him and straight away kill him. All the passengers of the bus were thereafter, robbed at the point of the gun. Then they took away Swamiji. There can be no doubt that the three persons were of desperate character had no hesitation in robbing and looting the passengers of the bus and also killing a person who might have opposed them. What was the intention of these persons in abducting Swamiji ? Only one, to torture him even to the extent of killing him in case he did not disclose the whereabouts of his valuables. In these circumstances the ingredients of sec. 364 I.P.C. are fulfilled. The abductors of Swamiji had the intention at the time of abduction to murder him or to put him in such a state that he might be so of disposed of as to be in the danger of being murdered. We are, therefore, of opinion that his abductors are liable under sec. 364 I.P.C. 18. It is proved beyond doubt that Dalel Sing accused was one of the persons who abducted Swamiji. On this point there is overwhelming evidence. Besides the three witnesses namely Mst. Naraini, Onkar Singh and Phulia, there are other witnesses who were in the bus at the time who saw Swamiji being carried away by Dalel Singh accused and his companions. Bajranglal P. W. 2 was the driver of the bus. Bhimaram was the cleaner and Gokul Singh was the conductor All these three witnesses identified the accused and stated that he (Dalel Singh,) was the person who was riding behind Swamiji on the same camel and that at that time Swamiji was tied with a rope. Then there is the statement of Ramkumar Singh P. W. 17 who also identified accused and gave a similar statement. 19. Dalel Singh was arrested by Rohtak Police and he was brought by two constables to Jhunjhunu Police Station. One of them was Raghunath. P. W. 8. From the time when he was taken over by the Rajasthan Police in his charge, he was kept baparda. This fact is proved by the statement of Raghunath P. W. 8 and several other witnesses under whose charge he remained till the time of his identification before a Magistrate which took place on the 24th of June, 1954. From the time when he was taken over by the Rajasthan Police in his charge, he was kept baparda. This fact is proved by the statement of Raghunath P. W. 8 and several other witnesses under whose charge he remained till the time of his identification before a Magistrate which took place on the 24th of June, 1954. These witnesses are Raghunath P. W. 8, Chain Sukh Reader of the Superintendent of Police P. W. 10, Balbir Singh, Head Constable Jhunjhunu P. W. 14, Shivram Singh Jailor, District Jail, Jhunjhunu P. W. 15 and Bhanwar Singh, Head Constable, Thana Jhunjhunu P. W. 13. The test identification parade was made before Shri Jagrupsahai P.W. 7 on the 23rd of June, 1954 who took all possible precautions. Gokal Singh, Bajranglal, Onkar Singh and Ramkumar Singh identified the accused correctly as one of the three dacoit. The accused said before the Magistrate that he had been shown by the police to the witnesses. He also reiterated the same statement at the trial but we are satisfied that there is no substance in it. All precautions were taken to keep the accused Dalel Singh baparda till he was put up for identification. It is therefore, proved beyond doubt that Dalel Singh accused was one of the three dacoits who abducted Swamiji in order that he may be murdered or may be placed in such a state that he may be in danger of being murdered. As such he is liable under sec. 361 I.P.C. The prosecution evidence fell short of proving that the accused caused the death of Swamiji or abetted his murder. It may have been caused by some one else also. He, therefore, cannot be convicted under sec. 302 or 302/ 34 I.P.C. But he is convicted under sec. 364 I.P.C. 20. The appeal of Dalel Singh automatically fails as the State appeal succeeds. 21. As a result the appeal of Dalel Singh accused is rejected. His conviction and sentence under sec. 342 I.P.C. is maintained. The appeal of the State is partly allowed. The accused Dalel Singh is also convicted under sec. 364 I.P.C. and is sentenced to undergo ten years rigorous imprisonment. On that count his acquittal under sec. 302/34 I.P.C. is maintained.